Armed Forces did not rule out the responsibility of the Russian structure for the maternal American
Contrary to the expectations of many lawyers in their decision in the case of the Skombank against Citibank, the Supreme Court of the Russian Federation (Supe) did not categorically prohibit the prosecution of the Russian “daughter” for the actions of a foreign maternal structure. From the published definition it follows that in exceptional cases this is possible, the plaintiff needs to more carefully collect specific evidence in support of his position. In addition, the Armed Forces did not exclude the possibility of foreclosure on the assets of the debtor in third parties within the framework of the law on enforcement proceedings.
On May 13, the Armed Forces published a definition of a case in which the Soskombank demands to recover $ 24.1 million together with Citibank Na (USA) and his Russian “daughter”. The debt was formed as a result of a number of transactions with derivatives of financial instruments, which were executed as part of the General Consignation of 2017, concluded by the Sovcombank with the American Citibank Na, due to US sanctions against the Socialist Republic, this money was frozen on a special account, however, Sukombank found that it was entitled to demand them, including from the Russian bank, which is part of the American bank in one group of persons, Since they « act in a single interest and are controlled from a single center. » The arbitration courts satisfied the lawsuit by recognizing the Russian and American Citibank for the harm to the harm.
On the complaint of Citibank, insisting that the subsidiary is not liable for the obligations of the head (see “Kommersant” dated January 30), the case was transferred to the economy of the Armed Forces. The collegium canceled all judicial acts, sending a dispute for a new consideration, which was interpreted by many lawyers as a ban on attracting a “daughter” according to the duties of a mother company (See “Kommersant” from April 23). However, the motivating part of the solution of the Armed Forces was not so unambiguous.
Did not exclude or allowed
On the one hand, the legal entity independently and property is separate from its participants, recognized the Armed Forces, but on the other hand, in exceptional cases, a participant in the corporation and other controlling persons can be held accountable to the creditor of such a legal entity. In particular, if the company’s activities are artificially divided and conducted through “controlled interdependent persons”, as in “fraction of business”, the collegium gave an example.
In addition, the courts should have considered the possibility of attracting the Central Bank of the Russian Federation and finding out whether the Sovcombank could receive blocked money out of court (through an appeal for a license to an American sanction regulator). If I couldn’t, then the courts should “evaluate the degree of participation of each defendants in causing losses”, given that the requirements for Citibank are actually based on the non -fulfillment of the transaction, and the Russian “daughter” on an implementation of harm, the Armed Forces noted. At the same time, the Board emphasized the plaintiff, claiming the violation by the defendants of the public law and order of the Russian Federation, had to prove specific criteria for such a violation.
15 165 economic disputes
with the participation of foreign persons considered by arbitration courts for 2024
At the same time, according to the plaintiff and defendant, the recovery decisions have already been actually executed at the expense of the “daughter” in the Russian Federation of assets of the American bank. In this regard, the SPR ordered the courts to determine the degree of control of the American bank over the Russian “daughter”, including finding out the amount of investment, the size of Citibank property in the use of Citibank, and how much money came in favor of the “daughter” and to whom they belong. In addition, it is necessary to find out whether Art. 77 of the Law on Enforcement Proceedings (ZOIP), which allows the recovery to the debtor’s assets that are among third parties, including the Russian “daughter”. To determine these circumstances, the case was sent for a new consideration to the Moscow Arbitration Court.
The Russian Citibank “Kommersant” said that “they are welcoming the determination of the economy of the judicial acts with which the bank was brought to joint liability.” They specified that « they will continue to defend their rights in court. »
The Armed Forces gave lower courts instructions for an additional study of the circumstances of the case, including from the point of view of monitoring a foreign group of CITI over the Russian Citibank, not casting doubt on the very possibility of bringing the “daughter” to joint responsibility, the Azat Akhmetov partner, which represented the interests of the SMR LLC (the arrested of the Council of People’s Commissariates in this case), told Kommersant. According to him, the plaintiff adjusts the legal position on the new circle of consideration.
There are more questions than answers
The Armed Forces did not give a direct answer to the question of the admissibility of the well-liability of the Russian “daughter” of a foreign company for the latter debts, if the plaintiff does not have the opportunity to recover money from a foreign organization due to sanctions, says Ivan Rybakov, adviser to the MEF LEGAL Yurfire. The senior partner of AB Bartolius Julius Ty emphasizes that “everyone expected from the highest instance of a clear, unambiguous, normatively defined and applicable to similar matters of a legal position, but received ambivalent and multidirectional reasoning, in which, in fact, there are more questions, and is not given answers.”
Lawyers themselves interpret the conclusions of the Armed Forces in different ways. Mr. Rybakov believes that “in general, the Armed Forces hinted at the inadmissibility of“ blind ”to recover money from Russian“ daughters ”only due to the availability of international sanctions and a certain corporate structure, and also noted the need for the plaintiff, including the role of each of the defendants in causing losses.” According to the senior lawyer KA Delcredere, Roman Zhirnov, the economy of the economy of the property isolate of the legal entity and the inadmissibility of the arbitrary « lifting of the corporate veil ». »
Pen & Paper partner Ekaterina Tokareva agrees with this: « The affiliation of legal entities cannot be the basis for subsidiary, nor for solidarity, nor any other joint responsibility. »
The views of lawyers and the possibility of applying in such cases of Art. 77 ZOIP. According to Mr. Zhirnov, this is permissible. Mrs. Tokareva, on the contrary, believes that the plaintiff’s reference to this norm “will lead to a change in the subject and foundation of the claim, and this is prohibited”. “You can’t mix the rules of the claim and the possibilities of enforcement proceedings,” says Julius Tai.
The lawyers find it difficult to evaluate the plaintiff’s chances of a new consideration, since the prospects of the case depend on the actions and evidence of the parties and their assessment by the courts.
