Problem Aspects of Challenging Payments of Resource Supplying Companies in Insolvency (Bankruptcy) Cases.

 
PIIS231243500022076-1-1
DOI10.18572/2410-4396-2019-2-112-117
Publication type Article
Status Published
Authors
Affiliation:
Public Joint-Stock Company Mosenergo
London University
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 2
Pages112-117
Abstract

Despite the fact that the issues of legal regulation of bankruptcy and legal regulation of public relations in the energy sector as well as mandatory contracts are the subject matter of separate legal studies, there has not yet been performed a separate legal research on issues related to challenging payments of resource supplying companies in insolvency (bankruptcy) cases.

In order to unify court practice, it is proposed to amend the Bankruptcy Law through introduction of a clarifying provision on extraordinary preferential payment of creditors’ claims relating to operating payments in the event the debtor or the ultimate consumer of the debtor is referred to socially significant facility in the manner established in the energy laws and restriction of its consumption mode may have negative economic, environmental, and social consequences (including man-caused disasters, environmental catastrophes, and death of people).

Moreover, in order to establish equality between the creditors that have the opportunity to choose counterparties and those, for whom the law provides for a mandatory procedure for conclusion of contracts and fulfillment of obligations, it is proposed to exclude from the Bankruptcy Law cases of invalidation of payments under the contracts, conclusion of which was mandatory for the counterparty of a debtor under the law, made by the debtor in anticipation of bankruptcy or after initiation of a bankruptcy case, regardless of the delay in payment.

 

Keywordslegal status of energy companies, energy law, delay in payment, transaction challenging, mandatory conclusion of contract, bankruptcy (insolvency), socially significant facility
Received01.05.2019
Publication date01.06.2019
Number of characters16219
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1 Although issues of legal regulation of bankruptcy [1] and public relations in the energy sector [2] as well as mandatory contracts [3] are subject-matters of separate legal research, problems raised in this work has not yet been separately studied.
2 1. On establishment of possibility of extraordinary payment of the creditors’ claims relating tooperating payments in case the debtor is referred to socially significant subject (facility)
3 Clause 6, Article 129 of Law dated October 26, 2002, No. 127-ФЗ On Insolvency (Bankruptcy) (hereinafter referred to as the Bankruptcy Law) specifies the debtors, termination of activity of which may entail negative consequences (death of people or man-caused disasters andenvironmental catastrophes). Those include: educational institutions, including preschool ones; health care facilities; water, heat, gas, and power supply facilities, water disposal facilities, effluent treatment facilities, solid waste treatment, recovery, neutralization, and disposal facilities, and other utility facilities; facilities for illumination of territory in villages and cities as well as the facilities created to improve the territory.
4 The energy law, for example, in the Appendix to the Rules for the Complete and/or Partial Restriction of the Electricity Consumption Mode approved by Decree of the Government of the Russian Federation dated May 4, 2012, No. 442, describes reductions of electricity consumption, which can lead to economic, environmental, and social consequences. They include: government agencies, including the Federal Security Service of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Federal Guard Service of the Russian Federation, the Foreign Intelligence Service of the Russian Federation, the Chief Directorate for Special Programs of the President of the Russian Federation; health care institutions, state veterinary clinics as well as communication organizations, with regard to in-house networks; operating organizations for the centralized water supply and/or sewerage facilities in settlements; coal and mining enterprises; military units of the Ministry of Defense of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Federal Security Service of the Russian Federation, the Ministry of Emergencies and the Federal Guard Service of the Russian Federation; institutions executing criminal sentences, detention facilities, bodies and enterprises of the criminal enforcement system; Zababakhin All-Russia Research Institute of Technical Physics in Snezhinsk, the Chelyabinsk Region, All-Russia Scientific Research Institute of Experimental Physics in Sarov, the Nizhny Novgorod Region, and other organizations related to nuclear issues; organizations performing defense public contracts while using facilities for continuous production of explosives and armament; rail, water, and air transport entities; and entities involved in the energy sector.
5 A similar list of social facilities is set in the Appendix to the Rules for Restriction of Gas Supply (Delivery) and Extraction.
6 In addition to the above, clause 96 of the Rules for Organization of Heat Supply in the Russian Federation indicates the following categories of consumers as socially significant: educational institutions of primary and secondary education; social welfare institutions; underground railway systems; livestock and poultry farms, greenhouses.
7 A similar list is given in clause 68 of the Rules for Cold Water Supply and Disposal.
8 Herewith, the notions of “economic, environmental, and social consequences” referred to in the energy laws implicitly include such notions specified in clause 6, Article 129 of the Bankruptcy Law as “man-caused disasters, environmental catastrophes, and death of people”.
9 Thus, both the bankruptcy law and the energy law use the same legal category “socially significant subject (facility)” meaning a subject (facility), termination of activity (operation) of which is not allowed in order to avoid negative economic, environmental, and social consequences (including man-caused disasters, environmental catastrophes, and death of people)”.
10 To prevent negative consequences as a result of termination of activity (operation) of the specified subjects-debtors (facilities):
  • in the energy law, the resource supplying organizations (hereinafter referred to as the RSO) are prohibited to restrict consumption by these subjects (facilities) of electricity and heat, gas and cold water (clause 7, Article 38 of the Federal Law On the Electric Power Industry dated July 29, 2018, No. 35-ФЗ; clause 1, Article 22 of the Federal Law On Heat Supply dated July 27, 2010, No. 190-ФЗ, Article 8 of the Federal Law On Gas Supply in the Russian Federation dated March 31, 1999, No. 69; Part 9, Article 21 of the Federal Law On Water Supply and Disposal dated December 7, 2011 No. 416-ФЗ).
  • the Bankruptcy Law:
11
  1. sets a ban for meetings of creditors to make decisions on termination of the economic activities of the specified debtors (clause 6, Article 129 of the Bankruptcy Law);
  2. sets a condition related extraordinary preferential payment with regard to any other claims of the creditors of the expenses for implementation of measures to prevent occurrence of the above negative consequences (clause 1, Article 134 of the Bankruptcy Law).

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