COMMENTARY BY MIKHAIL GUSEV ON PROBANKROTSTVO
In 2016, a lease agreement for real estate was concluded between the Company and the Federal State Budgetary Institution. The Company failed to properly fulfill its obligations. The landlord filed a claim with the court to hold three controlling persons liable for the debtor's obligations.
The first instance satisfied the claim: the defendants failed to fulfill their obligation to file a bankruptcy petition with the court for the debtor and did not disclose the reasons for evading the fulfillment of their obligations.
The appellate court overturned the decision in terms of holding two of the three controlling persons liable: the statute of limitations had expired + there was no causal relationship between the bankruptcy of the Company and the actions of these persons.
The cassation court partially overturned the judicial acts, agreeing with the court of appeal that no causal relationship had been established between the actions of the controlling persons and the bankruptcy of the Company + the reasons for the debtor's failure to fulfill its obligations to the creditor had not been clarified. In addition, the court stated:
"Since the creditor usually does not have information about the debtor's business activities, unlike controlling persons, the burden of proof should be distributed taking into consideration the need to equalize the parties' capabilities to prove legally significant circumstances."
Resolution of the Federal Arbitration Court of the Moscow District dated 02.08.2025 on the case No. A40-158587/2023
Mikhail Gusev, Head of Dispute Resolution Practice and attorney at Infralex notes that current judicial practice follows the path of greater protection of creditors' interests:
"Both the position of the Supreme Court of the Russian Federation and the position of district courts (using the commented resolution as an example) demonstrate the application of a fairer approach to distributing the burden of proof."
According to Mikhail, the courts made hasty conclusions without examining the circumstances that are essential for resolving the dispute:
- the cause-and-effect relationship between the actions of the manager and the onset of the Company's bankruptcy;
- reasons for the Company's failure to fulfill its obligations to pay rent.