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The most significant cases in the field of bankruptcy

13 December 2024
Author: Sergey Mitrofanov
Mass media: Law Office news

The case of recovery of penalties and balancing of counterclaims in bankruptcy became the winner of the award «The most significant cases in the field of bankruptcy», organized by the association «Bankruptcy Club».

The Bartolius Law Office team consisting of Yuliy Tay and Natalya Vasilyeva successfully represented the PJSC «FGC — Rosseti» in a dispute with OJSC «Globalelectroservice». For two years in a row, the Bartolius Law Office has occupied a leading position in the category «Best cases» according to the Bankruptcy Club.

 

The essence of the case:

 

The case is related to a contract between PJSC «FGC — Rosseti» (customer) and OJSC «Globalelectroservice» (contractor) for the construction of an electric grid facility. The contractor violated the deadlines for the work, which led to claims from the customer of 1.23 billion rubles in the form of a penalty calculated at a rate of 0.4% of the contract price for each day of delay. At the same time, the customer delayed payment for the work performed, which led to counter-judgments in favor of the contractor. The customer demanded that these mutual claims be taken into account (balancing of the counterclaims). The case was heard by the court within the bankruptcy case of Globalelectroservice, so the dispute concerned the inclusion of the customer’s claims in the register of creditors’ claims (RCC).

 

The position presented by Bartolius Law Office in the Supreme Court:

 

The Supreme Court rejected the conclusions of the lower courts on the dominant position of the customer (Rosseti) as a monopoly in the electricity market and the discriminatory position of the contractor, who allegedly entered into an agreement on unfavorable terms. The Bartolius Law Office’s lawyers indicated that the contract was distributed through purchases under Federal Law No. 223-FZ, and the contractual terms, including a penalty of 0.4% of the total amount, were equal for all participants.

The lawyers managed to prove that a contract made as a result of an open procurement procedure, containing standard terms systematically applied in similar legal relations with other counterparties, cannot be classified as burdensome for the debtor precisely due to the mechanism of its conclusion. This conclusion is general and is important for many large organizations conducting purchases based on Federal Law No. 223-FZ, and can be universally used by other persons when hearing their disputes.

The lawyers also insisted that an arbitrary reduction in the penalty under Article 333 of the Civil Code of the Russian Federation is a manifestation of court interference in freedom of contract (Article 421 of the Civil Code of the Russian Federation).

In addition, the lawyers drew the attention of the court to the strategic importance of the facility for the energy system and the risks to the stability of the region’s energy supply. The delay could have led to emergency shutdowns and financial losses for other parties. Thus, the argument that the delay in commissioning the facility was not significant for the customer was rejected.

The lower courts erred by refusing to balance the debt without taking into account the payment already made by the customer to the contractor under other court decisions (collection of payment for work performed and interest for the delay). The lawyers argued that mutual claims should be taken into account to determine the final obligation, even if they were settled in different cases.

 

Supreme Court Decision:

 

The Supreme Court supported the position of the Bartolius Law Office, overturned the decisions of the lower courts, and upheld the claim of PJSC «FGC — Rosseti» to collect a penalty in the amount of 1.23 billion rubles, calculated from the total contract price, established the final balancing of the counterclaims and included the customer’s claim in the third priority of register of creditors’ claims of OJSC Globalelectroservice.

It should be noted separately that the Supreme Court issued a judicial act that decided the case on the merits, which happens extremely rarely.

 

Importance for law enforcement practice:

 

— The penalty may be calculated from the total amount of the contract, and not only from the cost of unperformed work, and a reduction of the penalty is possible only in exceptional cases.

— A contract concluded following an open procurement procedure with standard conditions applied in similar legal relations cannot be considered burdensome for the debtor.

— The court confirmed the legality of balancing the counterclaims, even if such claims were settled in different judicial acts.

— The need to take into account the strategic importance of objects, especially in the infrastructure sector, when assessing the consequences of violations of work deadlines was emphasized.

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