The court canceled amicable agreement due to the provisions on subsidy liability

The Arbitration Court of the North Caucasian District considered the case on the complaint of one of the creditors, who expressed dissatisfaction with the terms of the amicable agreement concluded with the debtor.  The document was signed by two majority creditors and contained, among other things, a refusal to bring the controlling debtor to subsidiary liability.

The court of first instance was not confused by such a state of affairs, and it claimed that the document contained no violations of law.

The parties that signed the agreement were two creditors holding 96% of the claims, as well as the manager of debtor.

The applicant accused them of affiliation, arguing that the true purpose of the concluded agreement was to free the controlling person from potential subsidiary liability.

Considering the complaint, the district court found that the amicable agreement had been concluded in violation of the law, since it resolved an issue that did not fall within the competence of creditors (bringing to subsidiary liability).  What is more, the inclusion of such a provision into an amicable agreement is also incorrect because the person indicated in the document was not a party to the agreement, therefore, other persons could not reach any consensus about his rights and interests.

As a result, the decision to approve the amicable agreement was canceled, and the case was sent for reconsideration (decision of August 13, 2021 in case № A20-3680 / 2015).