COMMENTARY BY YULIA KARPOVA IN THE PRACTICE SECTION OF PROBANKROTSTVO
Supreme Court: the contractual condition on increasing the price upon currency conversion should be taken into account when including in the register of creditors' claims.
The companies entered into an agreement in which the price was determined in US dollars, and all payments were to be made by the customer in rubles with conversion at the exchange rate of the Central Bank of the Russian Federation plus 1% on the date of payment. The contractor collected the debt from the customer in rubles at a rate increased by 1% and filed an application for inclusion in the register of creditors' claims in the bankruptcy case of the customer.
The courts of first and appellate instances satisfied the claim taking into account the condition of the agreement on increasing the amount by 1%, but the cassation court considered that establishing the claim at a rate different from the official rate of the Central Bank of the Russian Federation on the date of the introduction of the bankruptcy procedure is a violation of the Bankruptcy Law.
The Supreme Court of the Russian Federation did not agree with the cassation appeal and made the following conclusions:
- it is necessary to distinguish between the concepts of the currency of the debt (the currency in which the monetary obligation is expressed) and the currency of payment (the currency in which this obligation is subject to execution);
- the contract contains an indirect currency clause: the currency of the debt is the US dollar, and the currency of payment is the Russian ruble;
- the contract condition on increasing the cost of services by 1% when converted into rubles is a legal pricing factor and a generally accepted business practice for accounting for currency risks: the condition is aimed at compensating the contractor for possible future losses associated with the subsequent conversion operation.
According to Yulia Karpova, partner at Infralex, the position of the Supreme Court of the Russian Federation brings clarity to the legislative norms interrelation:
- the amount of obligations expressed in foreign currency is determined in rubles in accordance with the Central Bank exchange rate (Article 4 of the Bankruptcy Law);
- when paying a monetary obligation in rubles in an amount equivalent to a certain amount in foreign currency, the exchange rate or the procedure for determining it may be stipulated by the parties in the agreement (clause 2 of Article 317 of the Civil Code of the Russian Federation).
In the situation under consideration, the agreement provided for payment of a monetary obligation in rubles in an amount equivalent to a sum in foreign currency, i.e. the exchange rate of such currency was lawfully determined by the parties in the agreement (clause 2 of Article 317 of the Civil Code of the Russian Federation was to be applicated). Thus, inclusion in the register of the claim taking into account the provisions of the agreement is justified.
“From my point of view, this approach is well-balanced. When included in the register, the creditor has the right to count on the application of the provisions of the agreement and claim what is due to him in accordance with the terms of the agreement. At the same time, other creditors, if there are appropriate grounds, are not deprived of the opportunity to protect their rights, for example, using the institution of challenging transactions,” Yulia explained.