One of the key figures in the bankruptcy case is an arbitration manager. This is a Russian citizen who joined the organization of arbitration managers. Before taking office, the applicant undergoes a serious selection.
The candidate must meet the mandatory requirements:
- citizenship of the Russian Federation;
- a liability insurance contract has been concluded;
- in some cases, access to the state is required. secret;
- membership in a self-regulatory organization;
- passed theoretical exam;
- higher professional education;
- six-month internship by an assistant arbitration manager.
He must have an impeccable reputation. If the facts below are found, then the candidate for manager will be denied the job. So, it is not allowed:
- bankruptcy proceedings in relation to the arbitration manager;
- interest;
- criminal record for intentional crime;
- disqualification.
During bankruptcy proceedings, the trustee is required to take reasonable and diligent actions with respect to debtors, creditors, and society. In order to discipline the participants in this procedure, the legislation provides for the administrative liability of the arbitration administrator for the Code of Administrative Offenses for actions that turned out to be unlawful in bankruptcy. But practice shows that collisions with abuse of authority are possible.
According to the legislation, an arbitration manager may belong to one of four categories: interim manager, administrative, external or bankruptcy trustee. The status depends on the specific bankruptcy procedure:
- temporary conducts surveillance;
- administrative is responsible for financial recovery;
- an external manager conducts external management;
- competitive bankruptcy proceedings.
Responsibility of the Arbitration Manager
The legislation of Russia, the Civil and Criminal Codes of the Russian Federation provide for measures to bring an arbitration manager to administrative responsibility, to criminal or civil, as well as his removal from office.
In relation to those managers who violated the rules of their prof. The following types of disciplinary liability apply:
- fine;
- order with the elimination of violations on time;
- public warning;
- exclusion of a citizen from SRO.
On what grounds can an arbitration manager be removed
The general basis for the removal of an official is the improper performance or non-fulfillment of his duties under the bankruptcy law and the rules of prof. activities established by the Government of the Russian Federation.
He is also removed by the court, applying administrative punishment through disqualification. Competitive creditors may hold civil liability of the arbitration manager.
An insurance contract provides protection against these risks. About it further.
Previously, bankruptcy law provided for the existence of an IP status for an arbitration manager, but this requirement was subsequently amended. And since the activities of arbitration managers in a bankruptcy case are no longer entrepreneurial activities, in order to hold him liable for losses, a prerequisite is the presence of guilt.
Attraction to the admin.The liability of the arbitration manager is determined by Article 14.13 of the Code of Russia, which establishes punishment for actions if they are unlawful. Claims by bankruptcy creditors are considered out of bankruptcy cases.
Concealment of any property, property obligations or rights, information on the location, amount of property and other information on obligations, rights, transfer of property to other persons, destruction or alienation of property, including falsification, destruction, concealment of accounting and other accounting documents , which would reflect the economic activity of a legal entity - all this can serve as a basis to bring to administrative responsibility the arbitration manager.
But the above actions can cause major damage. This will be the basis for the criminal liability of the arbitration manager in accordance with Article 195 of the Criminal Code of Russia.
A person who has suffered a loss may claim damages with the funds available in the compensation fund:
- a self-regulatory organization, in which there is an arbitration manager, due to whose actions or inaction or improper performance of obligations there have been losses in the framework of the bankruptcy case;
- at the national association of SRO managers, if the compensation fund has been transferred there.
These organizations have 60 calendar days to satisfy the requirements or to submit a reasonable refusal to satisfy them.
Does the manager need to insure liability?
Immediately upon entry into the SRO, it becomes necessary to conclude a liability insurance contract. Without it, membership will be impossible.
Since the official may cause damage due to non-fulfillment or improper fulfillment of his duties, this insurance contract is concluded for damages. It is paid to third parties who are participants in a bankruptcy case.
Insurance is necessary to provide an SRO if an official violates the law.
Additional insurance
The minimum amount for a binding insurance contract is 3 million rubles. It is concluded for a year. But there are times when the property of the debtor is worth more. Then it is necessary to carry out additional liability insurance of the arbitration manager. This must be done no later than ten days from the moment the court approves the decision.
Sum insured
The size of the sum insured stipulated in the contract of compulsory liability insurance of the arbitration manager shall be calculated as follows.
After approval by the court of the arbitration manager, if the debtor's assets exceed 100 million rubles, then the sum insured will be as follows:
- With a book value of assets of 100-300 million rubles. - 3% of this value.
- 300 million rubles.-1 billion rubles. - 2% + 6 million rubles.
- More than 1 billion rubles. - 1% + 20 million rubles.
With an asset value of up to 100 million rubles, the insured amount will not change and will be standard - 3 million rubles.
And if the arbitration manager has several cases in the proceedings? Moreover, the total assets of each debtor is not more than 100 million. Then there is no need for additional insurance.
If the assets of all debtors in total are more than 100 million rubles, then anyway an additional contract is not required.
But in the presence of debtors with assets exceeding 100 million rubles. additional insurance is required for each enterprise (debtor).
What is a liability insurance contract?
After the Law entered into force, the judges began to be more attentive to the implementation of the provisions on financial security and require the arbitration managing contract for liability insurance.Such an agreement is an agreement concluded by the insurance company and the policyholder, under which the Insurer must make payments to victims of professional activities carried out by the Policyholder to third parties, in turn, the Policyholder is obliged to pay the insurance premium within the terms established by the contract. The contract must meet certain conditions that are provided for in the civil legislation of Russia.
The trustee liability insurance contract is deemed concluded with respect to third parties who may be harmed.
Third parties entitled to apply to court with a question of damages include:
- debtor creditors;
- the person whose debtor was / is the insured person.
The agreement on compulsory insurance of liability of an arbitration manager covers direct damage that has been caused to a third party involved in bankruptcy and is the subject of claims. The insurance company may also compensate for court fees, expenses, other legal expenses that were incurred in proceedings and other procedures in cases where such expenses are included in the insurance coverage.
The insurance object is the property interests of the arbitration manager, not contrary to the law of the Russian Federation.
Arbitration manager liability insurance is still a new type for the insurance market in Russia. And therefore, insurers do not yet have enough experience to assess risks and manage losses, and besides, it is difficult to use foreign experience due to differences in legislation.
Obvious is the fact that insurers need comprehensive assistance from arbitration managers to develop an approach to assessing the degree of risk and accepting it for insurance. The relevant market has high hopes for cooperation on this issue of managers, as well as self-regulatory organizations that are now actively being created.
Insurers consider this cooperation to be mutually beneficial for both parties, since it can help to create reliable financial support for the activities of all arbitration managers with the help of insurance, which will be verified by many years of experience through the experience of foreign countries.
The activities of the arbitration manager are diverse and subject to a large number of risks.
Arbitration Manager Risks
Insurance risk, in the event of which liability managers carry out liability insurance, is an event that has the sign of chance and the probability of harm to the interests of the property nature of third parties, associated with prof. activities of the arbitration manager.
Management and other decisions at any stage of bankruptcy are taken, affecting the interests of persons of various categories who are involved in bankruptcy. In such situations, the protection of the property interests of arbitration managers in cases of unintentional omissions or errors is of particular importance.
The risks include:
- losses incurred due to a negative result of actions committed by an official include his complete inaction, if the court did not oblige him to perform these actions;
- losses caused by force majeure;
- moral damage;
- unlawfulness of other persons.
Insurance case
An insured event of an insurance contract is a fact when the liability of the arbitration manager arises due to erroneous unintentional omission, action, negligence. In addition, the standard contract provides for exclusions of insurance coverage. As a rule, such exceptions include cases of damage caused by the following reasons:
- radioactive contamination, radiation, nuclear explosion;
- actions of terrorists or armed groups, war, popular unrest, military operations, the imposition of a state of emergency or martial law, civil war, rebellion, insurrection, revolution;
- an event, on the occurrence of which the insurer was notified by the arbitration manager prior to the entry into force of the insurance contract;
- criminal action / omission of the arbitration manager resulting in criminal liability as a result of a court sentence;
- improper fulfillment / non-fulfillment of obligations to return and identify the debtor's property;
- intentional misrepresentation or concealment of information that led to a decision in court or by creditors;
- infringement of exclusive and copyright rights;
- state requirement bodies, local authorities on the payment of duties, taxes and other mandatory payments, destruction or seizure of property in accordance with the decision of state. organs;
- disclosure or personal use by the arbitration manager of confidential information or trade secrets that became known as a result of the activity;
- actions aimed at obtaining benefits, remuneration, personal income to arbitration managers not prescribed by law;
- causing inaction / action to third parties moral harm;
- the performance by the debtor under the control of the arbitration manager of activities for which there is no license, and its receipt is mandatory;
- the alleged or actual, unintentional or intentional discharge, release, breakthrough or spread of substances polluting the earth into water bodies, rivers or the atmosphere, including the threat of such pollution;
- the need to neutralize, eliminate, detoxify, clean, treat, place pollutants.
The insurance contract may include other exceptions.
Terms and procedure for insurance claims payment
The terms and procedure for the payment of insurance indemnities are determined individually according to the terms of the liability insurance contract of the arbitration manager. And also within the amount established in it.
Denial of payment
When concluding a liability insurance contract, it must be borne in mind that the insurance company may refuse to pay if:
- The occurrence of an insured event due to the intent of the insured person.
- If the insurer was not notified about the occurrence of the insured event within the time period stipulated by the contract and there is no evidence that the lack of information could not affect the obligation to make payments.
- Other cases stipulated by the insurance contract.
All insurance disputes arising between the insured and the insurer upon failure to reach agreement are resolved by a judicial or arbitration procedure.
Insurers can and are ready to provide the necessary protection to arbitration managers, however, in this case, managers need to be interested in developing this type of insurance. Do not forget that there is a prosecution of arbitration managers.