LATEST ACCOMPLISHMENTS OF L&P LITIGATION PRACTICE

On 25/04/2023, Tatiana Tsepkina achieved the cancellation of interim measures in the form of a ban on registration actions that were imposed on the property of the principal of L&P in the framework of a resonant “banking” case.

 

It is known that by default it is quite difficult to achieve the application of measures to secure a claim in the arbitration court. But only if it is not a case of recovery of losses from former top managers of a credit institution, in respect of which measures were taken to prevent bankruptcy. In this category of cases, as a rule, none of the defendants can avoid interim measures. The courts side with the plaintiff (and this is the credit institution itself or the Bank of Russia), explaining this by the need to maintain a balance of the rights and interests of the parties. It turns out that long before the court resolves the dispute on the merits, the defendants find themselves in a less advantageous position compared to the plaintiff, since the adoption of interim measures against their property is associated with the restriction of their rights and may entail significant losses.

 

Taking into account the duration of review of this category of cases, the defendants are deprived of the right to dispose of their property, funds in their accounts for an indefinite period – from 3 years or more! Such a situation has developed for the defendants in the well–known “MinBank case” (“Moscow Industrial Bank” JSC). The court of First Instance refused to secure the claim, stating that the requested measures would leave the defendants and their dependents outside of social life, which, in our opinion, showed humanity and impartiality, then the court of appeal “corrected” the lower court and seized the funds held in the defendants’ accounts and the prohibition of registration actions with respect to their property, which by nature is equivalent to his arrest.

 

“MinBank Case” on the recovery of losses in the amount of more than 198 billion rubles was considered for three years and ended with partial satisfaction of the claim – the court refused to satisfy the claim against seven of the eighteen defendants, including the principal of L&P. Thus, there was no need to preserve the interim measures that had been in effect for almost three years!

 

However, even after the adoption of the judicial act on the refusal to satisfy the claim for damages and its entry into force, the courts are in no hurry to lift the restrictions, and the plaintiff continues to insist on the preservation of interim measures until the case is considered in higher courts.

 

“Jurisprudence on disputes on recovery of damages and the position of the courts on the application of interim measures, in our opinion, do not meet the criteria of proportionality and reasonableness, since they clearly do not ensure the balance of private and public interests, with a significant advantage in favor of the latter. The institution of interim measures in its current form demonstrates a number of significant flaws, including the possibility of unjustified restriction of private property rights related to fundamental human and civil rights. The effect of such restrictions remains for a very long time – until the completion of the hearing on the merits. At the same time, the absence of a legislative requirement to specify the duration of restrictions in the arbitration process, as provided for by the criminal procedure law, often leads to an excessively long effect of encumbrances with their initially unfair and unjustified application, which is confirmed by the “MinBank case”. We intend to certainly bring this issue to the discussion of the business and scientific community within the framework of the work of the Council on Legislative Initiatives under the Commissioner for the Protection of the Rights of Entrepreneurs in Moscow,” comments Tatiana Tsepkina, Head of the Bankruptcy and Subsidiary Liability Practice of L&P.