Commentary by Vladislav Shatrov on PRObankruptcy
The Arbitration Court of the North Caucasus District explained that the court has the right to evaluate the parties' actions to terminate a state (municipal) contract in a separate dispute over the inclusion of a state (municipal) customer's claim in the register if the creditor requests its termination.
"It is not necessary to file a claim for its termination in court to exercise the right to unilaterally terminate a contract,," the Arbitration Court of the North Caucasus District stated.
The district court's position is justified, according to Vladislav Shatrov, Senior Associate in the Insolvency/Bankruptcy Practice at Infralex, since, in accordance with Part 9 of Article 95 of Federal Law No. 44-FZ, the customer has the right to unilaterally terminate the contract on the grounds stipulated by the Civil Code of the Russian Federation (provided that this was stipulated in the contract).
The legal nature of such notification (if the customer has the corresponding right) is an unilateral transaction for the purposes of including the claim in the register. In addition to the general provisions of Federal Law No. 44-FZ, the general rules on legally significant notices (Article 165.1 of the Civil Code of the Russian Federation) and the provisions on the occurrence of deadlines for the fulfillment of obligations from the moment the observation procedure is instituted (Article 63 of the Bankruptcy Law) are also applicable.
On the one hand, such position will facilitate:
- the practice of resolving disputes regarding the inclusion of government customer claims in the register without court hearings;
- specifying the minimum set of documents confirming the legitimacy of the customer's claim (proof of advance payment, notice of contract termination, arithmetic calculation).
"For independent creditors, the debtor, and insolvency administrators, on the contrary, this demonstrates the need to take a more proactive stance: for example, if there are appropriate grounds, to declare the invalidity of a unilateral notice of withdrawal from a government contract in the event of a violation of the procedure for the government customer to exercise its right to withdraw from the contract," Vladislav concluded.