Признание иностранных банкротств в России: вопрос о применении международных договоров о правовой помощи

Закон. 2022. № 10. С. 112–138.

Mokhova E.

The article raises the question of which international treaties can be considered as a condition for the recognition of foreign court decisions commencing the bankruptcy proceeding. It is concluded that international treaties on legal assistance in civil cases were not created as a tool suitable for ensuring the cross-border effect of collective proceedings. Foreign court decisions commencing the bankruptcy proceeding cannot be considered as “issued in a civil case” (civil matters) or “in a civil and commercial case” (civil or commercial matters), in the sense that these concepts are embedded in international agreements on legal assistance. The author raises the problem of public interest in bankruptcy, as well as the collective nature of bankruptcy, which take this category of cases beyond the tools created for recognition and exequaturs on individual civil disputes. The Rubin v. Eurofinance SA case and its impact on the development of recognition and enforcement of insolvency-related judgments and on the recognition of foreign bankruptcy proceedings are analysed. The conclusion is made about the separation of the insolvency-specific recognition from the general civil one. This is manifested in the formation of regimes for both the special recognition of foreign bankruptcy proceedings and the enforcement of insolvency-related judgments. Cross-border bankruptcy is developing as a unique sui generis system and is not reducible to the issue of general civil exequaturs and conflict of laws rules.

Keywords: ЮНСИТРАЛ, UNCITRAL, трансграничное банкротство, признание иностранных банкротств, cross-border bankruptcy, recognition of foreign bankruptcies, insolvency-specific recognition, cross-border effect of bankruptcy, специальное банкротное признание, international agreement on legal assistance, collective proceedings, public interests in bankruptcy, международный договор о правовой помощи, коллективное производство, трансграничный эффект банкротства