THE SUPREME COURT WILL CONSIDER THE LIMITS OF THE GUARANTOR'S FORMALISM IN THE BANKRUPTCY OF THE PRINCIPAL

On April 19, 2023, the Economic Board will have to consider a complaint filed by PJSC United Aircraft Corporation (UAC) against the decisions of three judicial instances in the case of a bank guarantee. It was issued by Sberbank in 2017 to the beneficiary represented by JSC AHK Sukhoi (No. A41-65493/2021).

The reason for the appeal was the refusal of the credit institution to pay the company 285.5 million rubles. The plaintiff, who has not found support in the arbitration court, considers this outcome of the case to be a manifestation of formalism and abuse of his right by the bank.

In 2017, the Sukhoi Aviation Holding Company (AHK) (the customer) signed a contract agreement with the Stroy Group construction company near Moscow. It was necessary to reconstruct the production at the aircraft factory. Chkalov in Novosibirsk (the plant produces combat Su-34 and components for SSJ-100 passenger liners). The value of the transaction amounted to 1.52 billion rubles.

The developer (general contractor) had a reputation for sustainable business, which had contracts from large corporations and government agencies. The condition of the transaction was a bank guarantee issued by Sberbank. Its amount was 455.5 million (at least 30% of the total amount of the transaction).

In the fall of 2020, when it became clear that the contractor was not fulfilling the terms of the agreement, the aviation holding signed such an act, receiving 169.9 million from Sberbank. However, when in December Sukhoi presented a claim to the bank for the remaining amount (285.5 million), the bank refused to pay the money. Difficulties arose due to the absence of a reconciliation report as a payment condition prescribed in the contract.

AHK did not provide a reconciliation report, since the head of the principal's company, Pavel Babayev, had been prosecuted by that time (he was under arrest and was disqualified by the court), and the Stroy Group company itself went into bankruptcy.

AHK's attempts to convince the bank did not lead to anything. Sberbank did not want to take into account the state of affairs of the principal. This led AHK Sukhoi to arbitration. However, neither the arbitration court, which issued its verdict in January 2022, nor the appeal and cassation subsequently supported the beneficiary. Despite Article 370 of the Civil Code of the Russian Federation, the courts unanimously pointed to non-compliance with one of the conditions in the bank guarantee agreement.

AHK Sukhoi became a part of PJSC UAC in June 2022. Her appeal to the Supreme Court of the Russian Federation with a complaint seemed interesting to Judge Natalia Pavlova. On March 22, she issued a Ruling (No. 305-ES22-23473) on the transfer of the case to the Economic Board. According to experts, its outcome may have a significant impact on the practice of resolving such economic disputes.

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