Sun will consider the case of the recovery of losses with a

The Supreme Court of the Russian Federation will consider the case of recovery from the arbitration manager losses for loss in disputes about challenging the debtor’s transactions. The lower authorities considered that due to his inaction the limitation period was missed and as a result, the competitive mass did not receive hundreds of millions of rubles. At the same time, the courts indicated that the manager must prove his innocence himself. Experts in the legal community note that earlier the highest instance did not give unambiguous clarifications in such cases, and hope for the unification of practice.

A dispute that reached the Supreme Court of the Russian Federation (Sun) turned out as part of a businessman bankruptcy case Valeria Israilite. In February 2022, the Arbitration Court of St. Petersburg recognized the citizen bankrupt and introduced the procedure for the sale of property, for which he appointed the arbitration manager (AU) Anatoly Abaev. One of the debtor’s creditors, Narvia Holding Limited (Cyprus), remained unhappy with the inaction of the AU and filed a lawsuit to recover 346.2 million rubles from it.

According to the plaintiff, Mr. Abaev did not show proper activity twice. In one dispute, the court refused to invalidate the debtor’s transfers Mark Israilite totaling 52.5 million rubles. And in another proceedings, against LLC LLC, instances did not satisfy the requirements for another 557.9 million rubles.

The reason for the loss in both cases was the passage of the limitation period – the court pointed to this when he recognized the inaction of the AU “improper,” said Nardvia Holding Limited.

In March 2024, the first instance satisfied the requirements of the Cyprus company for AU in full, recovering 346.2 million rubles from Anatoly Abaev. (Narvia Holding Limited indicated this amount in the lawsuit). The court substantiated its conclusions on liability AU by a reference to the previously adopted judicial act on illegal inaction. Moreover, as the first instance considered it, the manager had to prove the lack of guilt and damage himself, but he did not.

However, the appeal took the opposite position, since evidence for recognizing transactions with Mark Israil and Logos was not given, that is, the limitation of the statute of limitations “did not lead to losses”, and there is no causal relationship between the behavior of the AU and the harm to creditors. At the same time, the plaintiff had to substantiate the opposite, the court indicated.

But the district cassation did not agree with this approach, which upheld the decision of the Arbitration Court of St. Petersburg to recover losses from Anatoly Abaev. The district court emphasized that taking into account the act of recognition of the inaction of the AU illegal the burden of proved the absence of a causal relationship is transferred to him.

Mr. Abaev filed a complaint in the Armed Forces.

The manager insists that “the courts incorrectly distributed the burden of proof” and actually took as the basis of their decisions only an act on recognizing the inaction of the AU illegal.

Meanwhile, the statute of limitations expired before the approval of the AU candidacy, and the loss in cases of recovering funds in the competitive mass is also due to the lack of sufficient evidence, the complaint said.

Anatoly Abaev also drew attention to the availability of pledged property, which provides the claim of the creditor and can still be realized, which the courts have not taken into account. In the opinion of Mr. Abaev, the Cyprus company stated the requirements of Prematurely.

The Armed Forces considered these arguments worthy of attention and referred the case to the economy college, the meeting was scheduled for May 22.

Who is to blame and what to do

Lawyer AB KIAP Elizaveta Fedulova says that AU is obliged to compensate for losses if he has not fulfilled or did not properly fulfill his duties, but this is only one of the conditions for bringing to civil liability. Along with this, it is necessary to prove the damage to the competitive mass, the illegitimate and guilty nature of inaction, the causal relationship between inaction and the damage caused, is listed by the president of the NCRB Union Valery Gerasimenko.

“In other words,” says AU Sergey Domnin, “even if the manager’s inaction is recognized as illegal, this is not a sufficient basis for automatically recovery of losses. The courts, in fact, should check what would happen if the AU had not allowed a violation: the consequences that are the same harmful to the competitive mass would have arisen, and if so, then only involve losses to compensation. ”

However, arbitration courts often have on the aircraft the burden of proved his fault, if the illegality of inaction has already been established, says Novator Legal Group, Alexander Katkov.

This, the lawyer continues, « creates the presumption of guilt of the manager, but does not replace evidence of losses and their connection with the violation. »

In any case, “it is necessary to prove that losses arose precisely due to the missing of the term, and not because of the lack of grounds for challenging transactions,” Mr. Katkov agrees with the conclusions of the appeal.

So, the courts, refusing to recognize disputed transactions invalid, indicated the lack of signs of suspicion, notes Valeria Gerasimenko. This means that “the inaction of the manager would not lead to causing losses” even in the case of observing the statute of limitations, Elizaveta Fedulova believes. “It turns out that the passage of the statute of limitations seems to have nothing to do with it: if it was not missed, a refusal for other reasons would follow, which means there are no losses,” summarizes Sergey Domnin.

Moreover, experts doubt that it was AU who missed the limitation period. The fact is that “none of the courts gave an assessment of the defendant’s arguments about the expiration of the deadline before his appointment” for the procedure, notes Valeria Gerasimenko. “This can serve as an independent basis for refusing to satisfy the statement of losses,” she said.

All lawyers surveyed by Kommersant expect that the economy of the manager will be sided with the manager. According to Alexander Katkov, the upcoming decision will be significant for the unification of practice, since earlier the Armed Forces did not give unambiguous explanations on the problem of the distribution of burden of proof.

Jan Nazarenko