Arbitration manager. Requirements for the candidacy of an arbitration manager Confirming

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An insolvency administrator is a person who assumes the functions of managing a debtor organization in order to subsequently bring it out of the crisis. He knows the basic methods of crisis management, which he applies. He must be on the staff of an independently regulated organization of insolvency practitioners, and also, in accordance with Article 20 of the bankruptcy law, meet all the necessary requirements for participation in an SRO and not fall under the restrictions given in the second paragraph.

During the consideration of a bankruptcy case, the arbitration court has the right to approve the candidacy of an administrative manager for a bankrupt enterprise if the defaulter or creditor has filed a corresponding application for the bankruptcy procedure.

Selection conditions

The main condition for potential candidates for the position of arbitration manager is the presence of Russian citizenship and registration in one of several independently regulated organizations of arbitration managers. This is important because The liability of arbitration managers is provided for by law.

The requirements for an arbitration manager are not limited to citizenship. It is important to be able to easily operate different areas of knowledge in problems related to financial insolvency and crisis management.

His job responsibilities include: conducting and supporting bankruptcy cases, preparing claims to declare the defaulter bankrupt, registering bankruptcy, as well as consulting on current issues, collecting debts and conducting analyzes in the field of economics and law. Possession of a wide range of knowledge in various fields is necessary for a manager to competently control the situation during the period of managing the work of the entire organization.

Making a seal of an arbitration manager

Advertising and production offers urgent production of a personal seal of an arbitration manager in Saratov. According to Bank of Russia Instruction No. 28-I from September 14, 2006, it is needed for the purpose of certifying documents, issuing a bank card for the purpose of managing the debtor’s accounts. But in practice, it has emerged that the position of the arbitration manager’s seal is higher than what is currently established by regulatory legal documents. It is needed in relationships with courts, banks, and other persons.

In order to certify their own signature, insolvency practitioners use their own seal, including the imprint of this seal that the bankruptcy (external) manager affixes when issuing a bank card for the purpose of disposing of the debtor’s account. Bankruptcy law requires the presence of such seals, but there are no specific requirements for the seal.

Requirements for managers

Requirements for the candidacy of an arbitration manager are divided into general and conditionally restrictive. According to Art. 20 According to the Federal Bankruptcy Law, the general requirements for an arbitration manager include principles that boil down to his actual membership in a self-regulatory organization of arbitration managers. To obtain and maintain the status of a full member of an SRO, an arbitration manager must have:

• citizenship of the Russian Federation;
• academic education;
• At least one year of experience in a managerial position;
• a document confirming the completion of a six-month internship as an assistant to an arbitration manager;
• passed a theoretical knowledge test;
• certificate of absence of punishment in the form of removal or deprivation of the right to hold certain positions and engage in related activities;
• unblemished reputation in the field of law;
• certificate of personal compulsory liability insurance of the arbitration manager in the insurance company;
• contribution to the compensation fund of SRO insolvency practitioners;
• the opportunity to make membership fees to the SRO of arbitration managers.

The conditionally restrictive requirements imposed on the arbitration manager, in accordance with the second paragraph 20 of article 20 of the bankruptcy law, mean:

• lack of interest in relation to the defaulter or creditors;
• by court decision, compensation for existing losses in the bankruptcy case, before the upcoming appointment;
• having a positive budget balance, being in the status of an individual entrepreneur or citizen;
• no restrictions, the right to occupy leadership positions or carry out certain professional activities;
• availability of a valid liability insurance contract in case of losses in a bankruptcy case;
• lack of status as a disqualified person;
• if necessary, have access to state secrets.

Documenting the activities of the arbitration manager

M.A. Dubovitskaya, quality manager at a German consulting holding

• Status of the arbitration manager, his rights and obligations
• Functions of a self-regulatory organization of arbitration managers
• Documents created by the arbitration manager as part of the bankruptcy procedure

Bankruptcy of an enterprise is recognition of the fact of its insolvency by an arbitration court. An application to declare a debtor organization bankrupt (insolvent) is submitted by a person who has such a right. According to Article 7, Clause 1 of the Federal Law “On Insolvency (Bankruptcy) in the Russian Federation,” such persons include:

• debtor,
• bankruptcy creditor,
• authorized bodies,
• employee, former employee of the debtor, who have claims for payment of severance pay and (or) wages.

An application to declare an organization bankrupt is considered within the period established by law (usually a month), during which the court verifies the validity of such an application. The period may be extended to obtain additional documents or eliminate the court's comments.

Based on the results of consideration of the application, the arbitration court issues an appropriate ruling on (not) recognizing the validity of the application to declare the enterprise insolvent (bankrupt).

As part of the bankruptcy procedure, there is an authorized person appointed by the relevant court decision, who from that moment accompanies the entire process. This person is an arbitration manager.

In this article, we focus specifically on documenting the activities of the arbitration manager; for this reason, a number of its components as a subject of professional activity are deliberately omitted.

According to Article 20 of the Federal Law “On Insolvency (Bankruptcy) in the Russian Federation,” “an arbitration manager is a citizen of the Russian Federation who is a member of one of the self-regulatory organizations of arbitration managers.”

Self-regulatory organization of arbitration managers (SRO AU) is a non-profit organization whose members are arbitration managers. The purpose of the SRO AU is to regulate and ensure the activities of arbitration managers.

The arbitration manager is a subject of professional activity and carries out professional activities while engaged in private practice.

Among the requirements for the candidacy of an arbitration manager are:

• presence of higher education;
• having worked in management positions for at least a year and trained as an assistant to an arbitration manager for at least six months;
• passing a special theoretical exam, etc.

From the moment of appointment by the court to conduct a bankruptcy case, the insolvency practitioner acquires special rights and responsibilities, among which it is advisable to distinguish the following groups:

1. a group of rights related to relationships with creditors (for example, convening a meeting and/or committee of creditors);
2. a group of rights related to interaction with the arbitration court (for example, filing applications and petitions, including for exemption from the performance of duties assigned to it);
3. a group of rights related to relationships with the debtor organization (involvement of other persons to ensure the duties assigned to it on a contractual basis with payment for their activities at the expense of the debtor; requesting the necessary information about the debtor, about persons included in the management bodies of the debtor, about counterparties and about the obligations of the debtor, etc.);
4. a group of responsibilities in relation to the debtor organization (take measures to protect property; analyze the financial condition of the debtor and the results of its activities; reasonably and justifiably carry out expenses associated with the performance of the duties assigned to it in a bankruptcy case; identify signs of deliberate and fictitious bankruptcy, etc. .);
5. a group of responsibilities in relation to creditors (keep a register of creditors’ claims; provide the meeting of creditors with information about transactions and actions that entail or may entail civil liability of third parties, etc.).

Documents created by the arbitration manager as part of the bankruptcy procedure

The bankruptcy process is quite lengthy and includes several stages: supervision, external management, financial recovery and bankruptcy proceedings. In the simplified bankruptcy procedure, only two stages are used - observation and bankruptcy proceedings.

For each such stage, its own arbitration manager is appointed (temporary - in case of supervision, external - in case of external management, administrative - in case of financial recovery and bankruptcy - in case of bankruptcy proceedings).

Each stage is subject to relevant legislative requirements, as well as requirements for the activities of the arbitration manager and its documentation.

Table 1 shows the relationship between the stage of bankruptcy, the terms of reference of the arbitration manager and the set of documents created within a specific stage.

At all stages of bankruptcy without exception, the bankruptcy manager exercises his rights and obligations in relation to four groups of subjects: the debtor organization, creditors (meeting of creditors), various government bodies and services, as well as banks and credit organizations, and the arbitration court.

A temporary manager appointed to the supervision stage in the debtor organization, as it were, accompanies the bankruptcy procedure. At this stage, the financial condition of the enterprise is analyzed and assessed. Based on the results of such an analysis, the court makes a decision to introduce bankruptcy proceedings into the organization or another stage - external management or financial rehabilitation, as a result of which the organization can exit the bankruptcy procedure.

Table 1

Continuation of Table 1

Based on the results of its activities during the observation period (usually six months), the temporary manager provides the court with a report on its activities and the minutes of the first meeting of creditors. The temporary manager's report is accompanied by: a conclusion on the financial condition of the debtor; a conclusion on the presence or absence of grounds for challenging the debtor’s transactions; justification of the possibility or impossibility of restoring the debtor’s solvency, the advisability of introducing subsequent procedures used in bankruptcy cases (Article 67, paragraph 2 of the Federal Law “On Insolvency (Bankruptcy) in the Russian Federation”).

Based on the received reporting documents, the arbitration court decides to introduce the next stage of the bankruptcy procedure.

If financial rehabilitation is introduced, the court appoints an administrative manager who has a number of corresponding rights and obligations.

Like a temporary administrative manager, he interacts with the debtor organization, creditors and the arbitration court.

Continuation of Table 1

Continuation of Table 1

According to Article 92 of the Federal Law “On Bankruptcy (Insolvency) in the Russian Federation,” if it is established that it is possible to restore the organization’s solvency, the court makes a decision on the debtor organization’s transition to the stage of external management, and the court appoints an external manager.

The external manager is obliged to submit to the meeting of creditors a report from the external manager, to which is attached a register of creditors' claims.

The report must also contain one of the following sentences:

• on the termination of external management in connection with the restoration of the debtor’s solvency and the transition to settlements with creditors;
• on the extension of the established period of external management;
• on termination of proceedings in connection with the satisfaction of all creditors' claims in accordance with the register of creditors' claims;
• on termination of external management and on applying to the arbitration court with a petition to declare the debtor bankrupt and to open bankruptcy proceedings.

Continuation of Table 1

If it is impossible to restore solvency, the arbitration court makes a decision to initiate bankruptcy proceedings and approves the bankruptcy manager.

After completing settlements with creditors, as well as upon termination of bankruptcy proceedings, the bankruptcy trustee submits to the court a report on the results of the bankruptcy proceedings, to which are attached:

• documents confirming the sale of the debtor's property;
• register of creditors' claims indicating the amount of repaid creditors' claims;
• documents confirming the repayment of creditors' claims, etc.

Continuation of Table 1

After the arbitration court considers the bankruptcy trustee’s report, the arbitration court issues a ruling on the completion of bankruptcy proceedings or a ruling on the termination of bankruptcy proceedings (in case of repayment of creditors’ claims).

Thus, in his activities, the arbitration manager, regardless of the current stage of bankruptcy, strictly adheres to the insolvency legislation, within the framework of which he conducts his own office work, which is divided into three areas:

1. interaction with the debtor enterprise (preparation and distribution of notifications of various types, registration of inventory, registration of dismissal of employees; challenging transactions and concluding new ones; selling property at auction; completing the procedure for transferring documents for archival storage, etc.);
2. interaction with creditors (meetings of creditors), namely: compiling and maintaining a register, correspondence on issues of inclusion/exclusion from the register/adjustment of requirements, provision of reports on their activities, preparation of documents for holding a meeting of creditors, etc.
3. interaction with the arbitration court (preparation and submission of petitions on issues related to the financial condition and property of the debtor, inclusion/exclusion of creditors from the register, removal of the debtor’s director from office, provision of reports on their activities, etc.).

It can be concluded that documenting one’s activities plays a major role in the exercise of powers by the arbitration manager. Each action of the manager is accompanied by the creation of a corresponding document. Consequently, increased requirements should be placed on the procedure for documenting such activities.

Application

Form of Conclusion on the progress of the debt repayment schedule and financial recovery plan2

Date Place of compilation

______________________________________________________________

(Full name of the arbitration manager)

______________________________________________________________

(full and abbreviated name of the debtor organization indicating

its organizational and legal form and full details)

_______________________________________________________________

(category of debtor)

_______________________________________________________________

(debtor's address)

Information about the arbitration manager

Information about the persons involved by the arbitration manager to ensure his activities

Information about complaints about the actions (inaction) of the arbitration manager

Information on the administrative manager’s exercise of his rights and fulfillment of his duties

Financial recovery was introduced based on the decision

________________________________________________________________

(list of founders (participants) of the debtor who voted for this

_______________________________________________________________

solution; body authorized by the owner of the debtor’s property -

unitary enterprise; third parties)

Duration of financial recovery _____________________________________

(start date and end date)

Information about the persons who provided security and the security they provided for the debtor to fulfill his obligations

Information on the implementation of the financial recovery plan

Information on the implementation of the debt repayment schedule

Information on other actions of the administrative manager

Maintaining a register of creditors' claims

The responsibility for maintaining the register is assigned to ________________________________________________________________

(Full name of the arbitration manager, name of the registrar organization)

Registrar information

Monitoring the debtor’s implementation of the financial recovery plan and debt repayment schedule

Based on the analysis of data on the progress (results) of implementing the financial recovery plan and the debt repayment schedule, I suggest contacting _________________________________________________________________

(name of the arbitration court)

with a request for ______________________________________________________________

(amending the debt repayment schedule, terminating

_____________________________________________________________________________

bankruptcy proceedings, the introduction of external administration in relation to the debtor, declaring the debtor bankrupt and the opening of bankruptcy proceedings)

Federal Law “On Insolvency (Bankruptcy) in the Russian Federation” dated October 26, 2002 No. 127-FZ // Collection of legislation of the Russian Federation. 2002. - No. 43. - Art. 4190.

Order of the Ministry of Justice of the Russian Federation of August 14, 2003 No. 195 “On approval of standard forms of reports (conclusions) of the arbitration manager”

Material compensation

The sixth paragraph of the previously discussed article provides for the possibility of the arbitration manager to receive remuneration and reimbursement of costs in full in order to fulfill his obligations in the case. The payment that the defaulter is obliged to compensate consists of certain monetary charges and interest, unless otherwise provided by law.

The financial compensation due to managers for one month depends on their status. For example, the remuneration for an external manager is forty-five thousand rubles, for arbitration and bankruptcy – thirty thousand rubles, for an administrative manager – 15 thousand rubles.

Compensation according to the decision of the arbitration court varies upward at the request of persons participating in the case or as a result of mutual agreement reached between creditors. Also, the remuneration paid at the expense of creditors may increase due to a mutual positive decision of their meeting.

There are situations that exclude the possibility of receiving material compensation in the event of dismissal or removal of the arbitration manager from the case from the moment the sanctions are imposed. The interest provided for the remuneration is paid from the moment of completion of the case no later than ten calendar days. The percentage amount depends on the book value of the debtor’s assets, which must be at least 4% and the type of arbitration manager leading the case.

Equipment for printing of an arbitration manager