Ответственность иностранного менеджмента при банкротстве иностранной компании: пределы vis attractiva concursus и lex fori concursus за рубежом и в России. Часть I: Зарубежный опыт

Закон. 2026. № 7. С. 172–192.

Mokhova E.

The article is the first part of a study of the foreign directors responsibility in the bankruptcy of foreign companies, which analyses he European approach, the international standard of UNCITRAL and foreign experience on this issue. The problem is considered through the prism of the concept of internationalisation of the responsibility of the debtor’s directors to its creditors, when the director must assess the risks of penalisation not only according to the lex societatis, but also according to the law of the company’s place of business. The author examines the narrow and broad approaches to the principle vis attractiva cocncursus, its exclusive and non-exclusive nature, the relationship between the jurisdiction on vis attractiva concursus and the jurisdiction in personam of the debtor’s director. It is concluded that the jurisdiction of the bankruptcy court in relation to the disputes on the debtor’s director responsibility should not be exclusive if the state of the court is not bound by the uniform principle vis attractiva concursus. It is permissible to establish relative exclusivity with the administrator’s right to depart from vis attractiva concursus in the interests of collective proceeding and to claim the director in the country of his domicile or in another one if the claim is related to another action (forum connexitatis). It is concluded that the requirements for directors are subject to the rule of a two-stage assessment, depending on the state of the court: at the stage of determining jurisdiction, the test of „close connection with the bankruptcy case“ is used to assess whether it falls under the jurisdiction of the bankruptcy court (procedural component), at the stage of determining the applicable law, the nature of the claim is assessed to identify the applicable conflict of laws rules (the conflict of laws component). The article examines the issue of the extraterritorial effect and the mandatory nature of the rules on management responsibility for fraudulent or wrongful trading in the run-up to bankruptcy, and the formation of a universal mandatory rules (transnational public order in the field of economic relations) to prevent fraud by directors against creditors.

Keywords: сверхимперативные нормы, cross-border insolvency, субсидиарная ответственность, трансграничное банкротство, lex fori concursus, lex fori concursus, исключительная компетенция судов, vis attarctiva concursus, directors’ liability in bankruptcy, vis attarctiva concursus

Publication based on the results of: International protection of economic rights in the context of sanctions (2025)