The case was submitted to the Supreme Court: Complex Energy Solutions LLC filed a lawsuit to bring Timofey and Andrey Tretyakovs to subsidiary liability for the obligations of Stalkraft LLC (debtor) and to recover 4.7 million rubles from them. The lower courts dismissed the case - REFERENCE TO THE CASE

Advocate and Managing Partner of RI-Consulting Elena Gladysheva on what position the Supreme Court may take? How important is it for the practice?

"Article 61.19 of the Bankruptcy Law gives a creditor of a debtor the right to apply to a court for bringing its controlling persons to subsidiary liability outside the bankruptcy case. This right is an additional guarantee of ensuring the rights and interests of the debtor's creditors and may be exercised after the completion of bankruptcy proceedings or termination of bankruptcy proceedings, if the person whose claims have not been satisfied in full becomes aware of the existence of grounds for bringing to subsidiary liability.

As it follows from the materials of the dispute under consideration, exercising its right stipulated by Article 61.19 of the Bankruptcy Law, Complex Energy Solutions LLC, a creditor of Stalkraft LLC, applied to the arbitration court with a claim to bring the debtor's former founder and the general director, who were aware of the unfulfilled obligations to creditors, within a short time left the management bodies of the company under their control and created a new legal entity, transferring the powers of the general director to a proxy CEO. According to the plaintiff, these actions were aimed solely at preventing the Defendants from being held liable for the debts of the company they headed.

The courts of the first, appellate and cassation instances dismissed the claims, pointing to the lack of a causal link between the actions of the Defendant and the adverse consequences for the Plaintiff, which, in our opinion, is unreasonable.

Based on the content of the judicial acts adopted in the case, we can conclude that the courts have not properly assessed the claimed arguments about the actual transfer of business from one person to another on the eve of the bankruptcy of the debtor, applying a higher standard of proof to the Plaintiff. In addition, the courts, ignoring the imperative provisions of the Law on Bankruptcy, indicated that the plaintiff failed to justify the application of special bankruptcy law to the arising legal relationship, which runs counter to established court practice, including the position of the RF Supreme Court set out, for example, in Decree № 307-ES21-29 of 10.06.2021.

These violations served as grounds for referring the cassation appeal of Integrated Energy Solutions LLC to the Supreme Court Chamber for Commercial Disputes, which, in our opinion, will send the case for a new hearing to the court of first instance.

The decision made by the Supreme Court Chamber for Commercial Disputes will be important for law enforcement practice and remind arbitration courts, which rarely encounter this category of disputes (unfortunately, these disputes are considered by judges who are not bankruptcy judges), of the importance of balancing the rights and legitimate interests of debtor’s creditors. 

Read more about the background of the case and the advocate's opinion in the publication