Article 45. The procedure for approving an arbitration manager - as amended, verified 05.29.2021 - Bankruptcy Law

Structure and content of Art. 45 127-FZ

Article 45 127-FZ consists of 11 points and is devoted to the appointment of an arbitration manager in a bankruptcy case. This is a very important stage, since the manager is vested with a wide range of important monitoring, leadership functions and responsibilities in the procedure for declaring a legal entity financially insolvent. A specialist must be appointed after the court accepts a bankruptcy petition of a certain legal entity and recognizes such a petition as justified (if there are signs of insolvency).

Article 45 takes into account the following issues regarding the appointment of an arbitration manager:

Actions of the SRO after receiving a court ruling or minutes of a meeting of creditors on the appointment of a manager.
Providing information on the form of access to state secrets for the debtor's manager and the degree of secrecy of information.
Approval of the arbitration manager by the court.
Grounds for refusal to approve a court administrator.
Actions upon the release or removal of an arbitration manager from his duties.

The full text of this article can be found here.

Who is an arbitration manager?

If in the past a person admitting his insolvency could only be dealt with by a legal entity, now this procedure is quite accessible to individuals. If a potential bankrupt has no way to repay the debt, he may declare himself insolvent. This method will be most convenient for those who do not want to create even more problems for themselves by hiding from their creditors.

To carry out the insolvency process, it is necessary to use the service of an insolvency practitioner. It’s impossible to do everything on your own.

At its core, an arbitration manager is a specialist who deals with bankruptcy. It is appointed by the arbitration judge during the consideration of a specific case. A prerequisite is that the candidate has a higher specialized education, as well as membership in a self-regulatory organization.

The responsibilities of a manager directly depend on the area in which they work. For example, arbitration managers are able to:

Collect debts owed to a bankrupt company from third parties;
Return the property of the defaulter if it is in the possession of third parties;
Monitor the progress of business at the stage of financial recovery of the company;
Transfer the bankrupt's money to his creditors;
Think over and plan the external management of the company;
Dispose of the property of a debtor who admits his own insolvency;
Compile a list of creditor claims, write financial statements;
Fire employees of a bankrupt company.

It follows that the arbitration manager has all the powers to intervene in the external and internal policies of the enterprise, dispose of property and repay debts on behalf of the debtor by selling his property.

In fact, this specialist is engaged in crisis management. Due to which a bankrupt company has the opportunity to improve its performance or fully pay off creditors through liquidation of the company and sale of property.

It is worth noting that the arbitration manager is not an employee. Only private entrepreneurs can obtain such a position. Thus, arbitration managers are individual entrepreneurs who work for themselves. But they must necessarily be members of self-regulatory organizations.

The arbitration not only approves the candidacy of the manager, but also calculates the amount of the award that he will receive. In other words, the income of an arbitration manager depends on the judge.

The role of the manager in the bankruptcy process

For the first time, the debtor is faced with the need to choose an SRO in general and an arbitration manager in particular at the stage of an application to declare the enterprise insolvent.

In his application, the debtor must provide all the necessary information about the self-regulatory organization. From the list of members of which the judge will have to select a manager. At the same time, he himself can propose a specific candidate. If a member of the SRO fully complies with all mandatory requirements, with a high degree of probability the judge will approve the candidate proposed by the debtor. A mandatory condition, in fact, is only the candidate’s compliance with all legal requirements.

At the legislative level, there are specific conditions for compliance with the post of an arbitration manager. This is not only about higher specialized education and mandatory membership in a self-regulatory organization. This is also the presence of a reputation and certain professional skills. And don’t forget about work experience and mandatory liability insurance. Anyone cannot be appointed to the post of arbitration manager.

The insolvency practitioner is involved in every stage of the insolvency process, from the monitoring stage to the organization of tenders for the sale of property. The choice of a bankruptcy trustee can have a serious impact on the outcome of the case. The manager's strategy can either rehabilitate the enterprise or completely destroy it. It was not for nothing that the legislation established serious requirements for the candidacy of a manager, and also created a body that monitors their work.

Obtaining an SRO ruling from the arbitration court

The previous version of the bankruptcy law regulated the procedure for appointing a manager to a position in general terms. So, in paragraph 3 of Art. 41 of the Law of 1998 indicated the following procedure:

When a supervisory procedure was introduced in relation to the debtor, a temporary manager was appointed.
If, after accepting an application from the debtor, it is impossible to determine the candidacy of a manager, then the court issues a ruling on the appointment of a manager no later than 10 days after such a decision is made.

Currently, the rule has been established that the manager must be a member of the SRO. This organization ensures that its members meet professional standards.

In paragraph 1 of Art. 45 127-FZ specifies the procedure for the actions of the SRO, which the organization must adhere to after receiving a court ruling declaring the debtor bankrupt with the candidacy of a manager indicated in it or the corresponding minutes of the meeting of creditors.

The SRO is obliged to provide the arbitration court with information about the compliance of the manager’s candidacy with the requirements of Art. 20, 20.2 127-FZ. These requirements include: having a higher education, no criminal record, passing a theoretical exam to prepare a manager, etc.

Upon receipt of a court ruling declaring a legal entity bankrupt without indicating a specific manager, the SRO must independently nominate a candidate from among its members. She should do the same when receiving the minutes of a creditors’ meeting without a specific candidate listed in it.

Conditions required to obtain the status of an arbitration manager

Membership in an SRO is a mandatory condition for carrying out activities as an insolvency practitioner. The requirements necessary for joining an SRO are set out in Art. 20 of Law No. 127-FZ. In accordance with it, the subject must have:

higher education;
At least 1 year of management experience;
At least 2 years of experience as an assistant manager;
compulsory liability insurance agreement (minimum insurance amount - 10 million rubles).

The applicant is required to complete a training course for specialists in this profile and pass an exam. The training of arbitration managers is carried out according to a unified program approved by order of the Ministry of Economic Development of the Russian Federation dated December 10, 2009 No. 517.

One of the conditions for membership in an SRO is payment of the fees established by the SRO, including to the compensation fund (Part 3, Article 20 of Law No. 127-FZ).

In this case, the following entity will not be able to become a member of the SRO:

subjected to disqualification for an administrative offense or crime;
having an outstanding conviction for an intentional act.

Anyone who was excluded from the SRO of arbitration managers due to violation of regulations at various levels and other mandatory requirements for 3 years before submitting an application for membership will also not be able to apply for membership in the SRO (Part 2 of Article 20 of Law No. 127 -FZ).

As conditions for membership, along with the above, SRO has the right to establish additional requirements for applicants (Clause 4, Article 20 of Law No. 127-FZ). Those persons who have filed for bankruptcy have the right to make special requirements (for example, having a legal education, etc., see paragraph 3 of Article 20.2 of Law No. 127-FZ).

Peculiarities of appointing a manager when working with state secrets

The declared SRO cannot nominate a manager if he does not have access to state secrets in cases where this is necessary for the bankruptcy of a given enterprise. The presence of such access is a prerequisite for the court to approve the candidacy of the manager.

The debtor and the executive authority, within 2 and 7 days, respectively, after the adoption of the court ruling on acceptance of the application, provide the court and the SRO with information about the form of access to state secrets of the head of the legal entity and the degree of secrecy of the information that the enterprise has.

Provisions on the specifics of appointing a manager, taking into account access to state secrets, appeared in the legislation thanks to amendments to the wording of Article 45 127-FZ in 2015.

Approval of the arbitration manager

In paragraph 5 of Art. 45 127-FZ states that based on the results of the review by the SRO of managers of information for compliance with their requirements under Art. 20, 20.2 127-FZ, the court approves the manager.

In the second paragraph of paragraph 5 of Art. 45 127-FZ when providing SRO managers with information about non-compliance with the requirements provided for in Art. 20, 20.2 FZ-127, and information about the insufficient competence, integrity and independence of the selected manager, the court may decide to refuse his approval.

After the candidacy of a court manager is approved, he must enter into an additional liability insurance agreement for the manager and submit it to the court, as well as to the SRO of managers, of which he is a member. This must be done no later than 10 days after its appointment by a court decision.

When determining the amount of the insured amount under an additional insurance contract, it should not be less than the size of the compensation fund of the SRO managers as of the last date preceding the date of approval of the manager. The requirement for civil liability insurance for the manager is a mandatory condition of his work.

Article 45. Procedure for approving an arbitration manager

[Bankruptcy Law] [Chapter III]
. Upon receipt of a ruling by an arbitration court to accept an application for declaring a debtor bankrupt, which indicates the candidacy of an arbitration manager, or the minutes of a meeting of creditors on the selection of a candidate for an arbitration manager, the declared self-regulatory organization of arbitration managers, of which the selected arbitration manager is a member, submits to the arbitration court information on the compliance of the specified candidacy requirements provided for in Articles 20 and 20.2 of this Federal Law.

In the event of receiving a ruling from an arbitration court to accept an application for declaring a debtor bankrupt, which does not indicate the candidacy of an arbitration manager, or the minutes of a meeting of creditors on the selection of a self-regulatory organization, the declared self-regulatory organization nominates a candidacy for an arbitration manager from among its members who have agreed to be approved by the arbitration court in the case about bankruptcy.

The declared self-regulatory organization does not have the right to nominate an arbitration manager who does not have access to state secrets in the established form, if the presence of such access is a mandatory condition for the arbitration court to approve the arbitration manager.

. The debtor and the territorial body of the federal executive body in the field of security, respectively, within two days and seven days from the date of receipt of the arbitration court's ruling to accept the application for declaring the debtor bankrupt, are obliged to submit to the arbitration court and the declared self-regulatory organization of arbitration managers information on the form of admission to the state the secret of the debtor's manager and the degree of secrecy of information that is circulated at the debtor's enterprise, or the absence of such clearance or such information.

. The declared self-regulatory organization of insolvency practitioners is obliged to ensure free access for interested parties to the procedure for selecting a candidate for an insolvency insolvency practitioner.

The decision to nominate a candidate for an arbitration manager is made by the declared self-regulatory organization on a collegial basis.

. No later than nine days from the date of receipt of the arbitration court's ruling to accept the application for declaring the debtor bankrupt or the minutes of the meeting of creditors on the selection of a candidate for an arbitration manager, the declared self-regulatory organization of arbitration managers shall send to the arbitration court, the applicant (the meeting of creditors or a representative of the meeting of creditors) and the debtor information on the compliance of the candidacy of the arbitration manager with the requirements provided for in Articles 20 and 20.2 of this Federal Law, in a manner that ensures delivery within five days from the date of sending, or presents the candidacy of the arbitration manager, as well as, if necessary, information on the availability of access to state secrets by the arbitration manager.

The declared self-regulatory organization is responsible for providing false information about insolvency practitioners.

Replacing the candidacy of the arbitration manager or self-regulatory organization specified in the application for declaring the debtor bankrupt is allowed at the request of the applicant before the date of sending to the declared self-regulatory organization the arbitration court's ruling on accepting the application for declaring the debtor bankrupt or the minutes of the meeting of creditors on the selection of the candidacy for the insolvency practitioner.

. Based on the results of consideration of the information provided by the self-regulatory organization of arbitration managers on the compliance of the candidacy of the arbitration manager with the requirements provided for in paragraphs 2 - 4 of Article 20 (including the requirements established by the self-regulatory organization of arbitration managers as conditions for membership in it) and Article 20.2 of this Federal Law, or the candidacy arbitration manager, the arbitration court approves an arbitration manager who meets such requirements.

If a self-regulatory organization of arbitration insolvency practitioners submits information about the non-compliance of the arbitration insolvency practitioner’s candidacy with the requirements provided for in Article 20.2 of this Federal Law, as well as information about the insolvency insolvency practitioner’s lack of sufficient competence, integrity and independence to carry out the procedure applied in the bankruptcy case, the arbitration court may accept decision to refuse to approve the candidacy of an arbitration manager in a bankruptcy case.

If the arbitration court approves the candidacy of an arbitration manager, in respect of whom the self-regulatory organization of arbitration insolvency practitioners has submitted the information specified in paragraph two of this clause, the arbitration insolvency practitioner is obliged to enter into an additional contract of insurance for the liability of the arbitration insolvency practitioner and submit this agreement to the arbitration court and to the self-regulatory organization of arbitration insolvency practitioners, of which he is a member, no later than ten days from the date of its approval by the arbitration court. The amount of the insured amount under the additional contract of liability insurance of the arbitration manager must be no less than the size of the compensation fund of the self-regulatory organization of arbitration managers as of the last reporting date preceding the date of approval of the candidacy of the arbitration manager.

. If the arbitration manager is released or suspended by the arbitration court from performing the duties assigned to him in a bankruptcy case and the decision to select another arbitration manager or other self-regulatory organization of arbitration managers is not submitted by the meeting of creditors to the arbitration court within ten days from the date of release or removal arbitration manager, a self-regulatory organization of which such an arbitration manager was a member, submits to the arbitration court in the manner established by this article a candidacy of an arbitration manager for approval in the bankruptcy case.

Simultaneously with the petition of the arbitration manager to relieve him of his duties in the bankruptcy case, the declared self-regulatory organization, of which the arbitration manager is a member, submits to the arbitration court the candidacy of a new arbitration manager in the manner established by this article, except for cases where there are no arbitration insolvency practitioners in the self-regulatory organization. managers who have agreed to be approved by the arbitration court in a bankruptcy case. The self-regulatory organization shall notify the arbitration court of the impossibility of submitting a candidate for an arbitration manager due to the absence of arbitration managers who have expressed their consent to be approved by the arbitration court in a bankruptcy case.

. In the event that the self-regulatory organization of arbitration insolvency practitioners fails to submit to the arbitration court a candidacy for an arbitration insolvency practitioner or information on the compliance of the candidacy for an arbitration insolvency practitioner with the requirements provided for in Articles 20 and 20.2 of this Federal Law, within fourteen days from the date of receipt of the arbitration court's ruling to accept the application for declaring the debtor bankrupt or minutes of the meeting of creditors on the selection of an arbitration manager or a self-regulatory organization, the arbitration court postpones consideration of the issue of approving an arbitration manager in a bankruptcy case for thirty days. In this case, the applicant, as well as other persons participating in the bankruptcy case, have the right to apply for approval of an arbitration manager in the bankruptcy case from among the members of another self-regulatory organization.

If within the established period the applicant has not applied to the arbitration court with a petition or the self-regulatory organization specified in such a petition has not provided information on the compliance of the candidate for the arbitration manager with the requirements provided for in Articles 20 and 20.2 of this Federal Law, or the candidacy of the arbitration manager, the arbitration court shall consider the petitions of other persons involved in a bankruptcy case.

When several petitions are received from other persons participating in the bankruptcy case, the arbitration court approves the arbitration manager, whose candidacy is indicated in the petition received first by the arbitration court, or the candidacy of the arbitration manager nominated by the self-regulatory organization specified in such a petition.

. Lost power. — Federal Law of July 27, 2010 N 219-FZ.

. If a candidate for an arbitration manager is not submitted within three months from the date when the arbitration manager must be approved in accordance with this Federal Law, the arbitration court shall terminate the proceedings in the case.

. If the arbitration manager, whose candidacy is indicated in the ruling of the arbitration court on accepting an application for declaring the debtor bankrupt or the minutes of the meeting of creditors on the selection of a candidate for the arbitration manager, or other arbitration managers - members of the declared self-regulatory organization of arbitration managers do not have access to state secrets in the established form and the presence of such admission is a mandatory condition for the arbitration court to approve the arbitration manager, the declared self-regulatory organization, within the period established by paragraph 4 of this article, reports this to the arbitration court.

. The arbitration court applies to the declared self-regulatory organization of arbitration insolvency practitioners if it has not received or untimely received information about the availability of the debtor's director's access to state secrets and the form of such access, to confirm information about the compliance of the candidacy of the arbitration insolvency practitioner with the requirements provided for in Articles 20 and 20.2 of this Federal Law , or re-submission by a self-regulatory organization of a candidacy for an arbitration manager in the manner established by paragraph 4 of this article.