THE COURT DECLARED THE FOREIGN COMPANY INSOLVENT BY ANALOGY

The liquidated foreign company Delvenisto Investments Ltd. was declared bankrupt by the Moscow Arbitration Court (case no. A40-5658/2023). The initiator of the process was the Trust bank, which recovered $ 92.7 million from the company in 2020. Obligations to the credit institution in the amount of 6.2 billion rubles of the principal debt remained unfulfilled, the firm also did not pay almost 132 million rubles of penalties.

In the course of court proceedings, it turned out that the company registered in the territory of Limassol (Cyprus) had been operating in Russia since 2017, receiving income from domestic partners, reports Право.ги . At the same time, the court did not have information about any work of the company directly in Cyprus. On the territory of the Russian Federation, Delvenisto Investments was the founder of several legal entities (Krasnobrodsky Yuzhny, Redwade).

The court faced a dilemma whether a court in the Russian Federation can extend its competence to the bankruptcy of a company abroad. After all, there is no literal confirmation of such a right in the relevant law or in the arbitration procedural code (Article 247 of the APC). However, the judge took into account the conflict of laws rules of the Ministry of Emergency Situations, according to which the status of a foreign company in Russia is based on its personal law (Article 1202 of the Civil Code of the Russian Federation).

As a result, the court applied the general rules of law by analogy. Despite the objections of the representative of Delvenisto Investments, who pointed out the absence of the company's property in the Russian Federation, the judge considered it possible to apply bankruptcy proceedings to those assets that have a close connection with Russia. An analogy was the bankruptcy of such entities that do not have an independent legal personality (for example, a hereditary mass or a peasant farm).

According to information received from Trust Bank, the asset of a Cyprus firm in Russia may be accounts receivable. It can be collected from Russian counterparties. For example, the company has requirements for a Russian citizen Anastasia Vysotkina. About 1.2 billion rubles secured by collateral real estate in Moscow, the company owed the company "Alenta" (JSC).

Experts note that the capital arbitration took into account the experience of bankruptcy of foreign firms, which was previously discussed in the context of the bankruptcy of Pandora Consulting, registered in Saint Kitts and Nevis. Rusbankrot already wrote about this case in May 2022.

Judge Grachev also took into account the content of the eighth package of sanctions imposed on the Russian Federation by the EU authorities. According to the document, Russian legal entities cannot demand the execution of court decisions on the territory of the EU if they were received outside of it. A refusal to Trust Bank would mean a violation of rights, since it would be impossible to search for property and collect debts in this case.

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