Problems and prospects of legal regulation of the activities of the arbitration manager in the framework of bankruptcy procedures

Ekhlakov Evgenii Petrovich Individual entrepreneur 603116, Russia, Nizhegorodskaya oblast', g. Nizhnii Novgorod, shosse Moskovskoe, 31A, of. 3 arbitr0001@gmail.com

Problems and prospects of legal regulation of the activities of the arbitration manager in the framework of bankruptcy procedures

"Arbitration management" as a "multifaceted", complex "socio–economic phenomenon", having an ambiguous legal nature, in the process of bankruptcy proceedings is assigned a defining importance not only in the modern doctrine of law, but also in the current legislation of the Russian Federation.

At the same time, the term "arbitration management" is used by the Russian legislator only indirectly, in the context related to the implementation of the activities of the arbitration manager.

The Federal Law "On Insolvency (Bankruptcy)" (hereinafter referred to as the Bankruptcy Law) ^[2] the arbitration department mentions only once when determining the scope of powers of self–regulating organizations of arbitration managers.

Such an established position of the legislator causes discussion in the scientific community, where the term under study is used more actively.

Having accumulated the points of view of scientists from different years on the problem of conceptual load, it can be concluded that in the science of "arbitration management"  it is considered in several meanings, in broad and narrow.

Adherents of broad judgments interpret arbitration management as a particularly specific type of professional activity consisting in the management of an insolvent debtor and (or) his property during bankruptcy procedures. Among the supporters of this position are the works of D.A. Sergeev ^{[9, pp. 557-560]}, A.A. Pakharukov ^{[8, pp. 221-230]}, V.V. Shishkina ^{[11, pp. 498-505]}.

Arbitration management in a narrow sense is reduced to the very functional activity of arbitration managers, say E.V. Sichinskaya ^{[10, pp. 164-167]}, M.V. Yavorovich ^{[12, pp. 66-69]}, emphasizing such characteristic features as:

- professionalism of the manager himself;

- the compensatory and non-entrepreneurial nature of the implementation;

- personal involvement in business;

- urgency.

In the context of the studied issues, adhering to a narrow approach in general, we propose to define arbitration management as a power–professional activity aimed at managing the activities of the debtor and his property, carried out within the framework of the bankruptcy procedure itself directly by the arbitration manager in order to achieve a balance of interests of all participants in such a procedure by endowing the arbitration manager with special professional competence established by the legislation on bankruptcy.

In turn, the effectiveness of the activity itself in the field of arbitration management is determined, first of all, by the legal status of the arbitration manager, characterized by a set of rights and obligations, as well as professional training and the necessary qualifications of such professional subjects.

A technical and legal analysis of Article 20 No. 127-FZ ^[2] indicates that only a citizen of the Russian Federation who is a member of one of the self-regulating organizations of arbitration managers can act as an arbitration manager.

In our opinion, the attention of the domestic legislator should be drawn to the problem of attracting foreign specialists to arbitration management who have positive professional experience in this field, which has been repeatedly pointed out in the legal literature ^{[10, pp. 164-167]}.

In this connection, it seems to us expedient to supplement the Federal Law on Bankruptcy in the relevant part with a provision on limiting the participation of foreign specialists in bankruptcy proceedings if the economic interests of the Russian Federation are affected or there is information that is a state secret.

The next problem that I would like to draw attention to is the very professional experience of arbitration managers, their competence and level of education.

At the same time, article 20 of the Bankruptcy Law indicates only the existence of the highest level of education, without specifying its profile.  We believe that such an omission should be made up by making amendments to paragraph 1 of Part 2 of Article 20 127-FZ as follows – "the presence of higher legal or economic education in the profile of crisis management."

We propose to supplement paragraph 2 of Part 2 of Article 20 127-FZ with an indication of the length of service and work profile as conditions for the activity of an arbitration manager - at least 3 years. We believe that just a one-year term looks extremely insufficient for any managerial position.

No less problematic is the absence of a legally legalized basis for removing a manager from performing his professional duties in the case of initially existing obstacles to his approval. This problem has been repeatedly raised by representatives of modern doctrine, characteristically pointing to such a legislative gap.

The authors emphasize "the absence of a procedural event that should serve as a basis for the removal of the arbitration manager from office in the case of reliable identification of obstacles to such judicial approval" ^{[6, pp. 24-28]}.

 In this connection, in order to eliminate such a legal imbalance, we consider it expedient to supplement Article 20.4 127-FZ with provisions in the following wording:

"The initiative of the court to remove the arbitration manager from performing the duties assigned to him can be implemented:

- if there are circumstances preventing such an assertion, including when they arise after such an assertion;

- in the presence of a gross violation of the law by the arbitration manager, expressed in providing the court with unreliable or incomplete information, evading appearance at the request of the court or other violations entailing the loss of the court's confidence in the arbitration manager;

- if there are grounds to believe that the activities of the arbitration manager are not directed and do not contribute to achieving the goals of bankruptcy procedures."

Another problem directly related to the activities of arbitration managers in certain types of bankruptcy procedures is the criteria of their interest and the effectiveness of arbitration management.

Analyzing the norms of the current bankruptcy law, we come to the conclusion that the norms containing the definition of interest (Article 19) require more precise specification and clarification in order to increase the effectiveness of the activities of the arbitration manager itself. Judicial and arbitration practice is a confirmation of this. The provisions of the law regarding the interest of the arbitration manager are interpreted ambiguously by the courts, which leads to a violation of the balance of interests of the parties ^{[3, 4]}.

From a legal point of view, it seems to us correct and economically feasible to develop updated criteria for the interest of arbitration managers.

We propose the following wording of amendments to Article 19 of the Bankruptcy Law:

"The arbitration manager should be recognized as an interested person in legal relations with the debtor or creditor if:

 - there have been labor relations between the arbitration manager and the debtor (creditor) directly during the last three years preceding the bankruptcy procedure;

- there is a debt of the arbitration manager to the debtor (creditor);

- other circumstances directly indicating the existence of any dependence of the arbitration manager on the debtor (creditor)."

In addition, in order to strengthen the financial independence of the arbitration manager, supporting the position on this issue of such authors as K.A. Kivilev ^{[7, pp. 41-42]}, N.A. Bazarova ^{[5, pp. 109-111]}, we propose to supplement paragraph 5 of Article 20.6 of the Bankruptcy Law, specifying:

"the nature, scope and complexity of the work performed are determined by establishing the following circumstances:

- the size of the receivable that is subject to collection, which has a significant size;

- the number of employees of the state;

- a large number of creditors;

- the number of measures carried out by the arbitration manager in the framework of bankruptcy procedures."

The duration of the bankruptcy procedures themselves determines the need to establish norms regulating the right to rest of arbitration managers directly in 127-FZ. Since the norms of labor legislation on these subjects of professional activity are not subject to dissemination.

Taking into account all of the above, we come to the conclusion that promising areas of reforming the institution of arbitration managers in certain types of bankruptcy procedures are: reforming its legal status; requirements for professional qualities and work experience; criteria of interest in legal relations with the debtor or creditor; strengthening financial independence.

In our opinion, it is necessary to develop and adopt a single law fully devoted to the legal regulation of the activities of arbitration managers in the framework of bankruptcy proceedings, which in its structural content will combine all the necessary norms on the legal status and activities of arbitration managers, which will allow for the most effective implementation of this type of power and professional activity.

In addition, we propose to create a system of professional training of arbitration managers at the state level, consisting of specialized courses and organizations of a narrow focus in order to train specialists in the field of arbitration management.