Arbitration managers are nominated for an electronic competition
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While the reform of the bankruptcy institution remains in limbo, the Ministry of Economy intends to test one of its elements – new approaches to the selection of arbitration managers (AM) – in insolvency cases initiated by the tax authorities. In such cases, managers will be selected automatically based on a point system. Experts consider the idea of “testing” the new approach to be correct, but believe that the system is too complex and does not take into account the specifics of the procedures.
The Ministry of Economy has prepared a draft government resolution on testing approaches to the selection of insolvency practitioners proposed as part of the bankruptcy reform. They are planned to be introduced into bankruptcy cases initiated by tax authorities. The reform itself, with an emphasis on restructuring, reducing the number of procedures and revising the operating rules of the AU, has been stopped for now: a bill on it was submitted to the State Duma back in 2021, but remains without movement (see Kommersant of May 18, 2021).
The essence of the idea of the Ministry of Economy is to automate the selection of managers based on a point system from the AU register (created on the basis of the services of the Federal Tax Service). SRO managers will send it applications and data on the performance scores of each of them and the SRO itself. During the selection process, applications from self-regulatory organizations with scores below the average are first excluded, then, according to the same principle, applications from the AUs themselves are excluded, and the winner is determined by a random selection from the remaining ones. If he refuses the case, the procedure starts again – up to five times; after this, the first of the managers who proposed their candidacy receives the case. The calculation of points is also regulated.
These rules will not affect isolated cases – in the first half of 2023, tax authorities initiated 12% of all bankruptcy cases (a year earlier – 23.7%). The innovations should be operational within six months after the adoption of the resolution – time is needed for the IT development of the AU register. As the Federal Tax Service explained to Kommersant, the rating system will allow us to get away from inefficiency and violations of the rules of procedure in bankruptcy – with its help, not random, but effective managers will appear in cases of debts to the budget. To score the required points, it is enough to be conscientious and not violate the law, the Federal Tax Service notes (see Kommersant-Online).
The head of the legal bureau “Olevinsky, Buyukyan and Partners” Eduard Olevinsky notes that the idea of an experiment instead of introducing an untested procedure into general use is correct. Valeria Tikhonova, senior lawyer for bankruptcy projects at the Vegas Lex law firm, agrees with this. But she notes that the Federal Tax Service will maintain the register in internal systems and other creditors will not learn to use the mechanism. Managing Partner of PB Legal LLC Alexander Panin believes that the measure is aimed at ensuring the independence of the AU, and a simple random sample does not guarantee their competence. According to Valeria Tikhonova, however, the chosen method of calculating points is “too complicated and very doubtful” – they will not always reflect the result of the actions of managers. In addition, Eduard Olevinsky believes, this will increase the costs of both the budget (for the development of the system) and the SRO, which will have to analyze a huge number of cases to submit applications, and is unlikely to solve the problem of delaying deadlines.
Arbitration manager Sergei Domnin considers the project “a new attempt to push through the rating of managers, in order to then say that everything worked perfectly in the affairs of the Federal Tax Service and let’s implement it.” The point system, in his opinion, is “biased, purely mathematical, does not take into account the specifics of procedures” and is only suitable for a generalized assessment of average typical cases (mainly for individuals). His colleague Pavel Zamalaev also believes that the calculation of points is too complex to be transparent, and some criteria are “very indirectly” related to the effectiveness of managers and can be influenced by other participants in the procedure. The system is unlikely to contribute to the independence of the insurance company and an increase in the share of debt repayments, he says.
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