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Dalla Russia, un contributo sul tema della responsabilità di soci e amministratori nelle situazioni di crisi

Luciano Panzani-Cristina Fussi

In the Russian Federation, legislative developments – and the relevant case law – concerning the liability of shareholders and directors of companies in distress appears to be moving along the lines of other legal systems in Europe, but with a more aggressive approach.

If compared with the approach of the Italian legislator, a radical difference can be noted with regard to the treatment of the liability of the directors, who respond in Italy towards creditors in case of mala gestio (mismanagement), whereas the Russian legislator seems to ground their liability – under certain conditions – on their qualification as controlling persons.

Interestingly, the Russian system places emphasis on the delayed acknowledgment of the crisis and commencement of an insolvency/restructuring procedure. The same emphasis that characterizes the new Insolvency Code recently adopted by the Italian legislator.

Shareholders who own 50% or more of the corporate capital are also considered controlling persons and as such respond vis-à-vis unsatisfied creditors, under certain conditions.

Here, too, we note a substantial difference with respect to the Italian legal system, where articles 2497 and ff of the Civil Code provide for the liability of the parent company only if evidence is provided (but direction and coordination is presumed if there is control pursuant to the civil code) that it carries out direction and coordination activity over and to the detriment of the company concerned.   

In limited liability companies, where, as opposed to stock companies, quotaholders could take the role as directors, liability is acknowledged when it is proved that the quotaholder intentionally decided or authorized the action(s) causing damages to the company concerned, the other quotaholders or the creditors. In this case, the ground for the liability does not seem so different with respect to the provisions of the Russian law.

The case law mentioned in the article reinforces the impression of an aggressive approach, in particular as regards the contents of the 2017 Supreme Court’s ruling referred to therein. The Court recognized in that ruling a very extensive discretionary power – which is not limited by the literal meaning of the provisions in force – in determining the circumstances that cause the arising of the subsidiary liability of the controlling persons.

The more aggressive Russian approach, this is the perception, is able to catch those abuses of the limited liability that would remain unpunished under Italian law.

Nevertheless, in that jurisdiction, too, a wide and undetermined exceptions is provided for those actions carried out “… in the course of ordinary business activity, undertaking reasonable risk management and not aimed at violating rights and interests of the creditors …”, which do not cause liability. Id est, in accordance with the business judgement rule.

The quantitative data reported in the article are impressive, too. In one year, the number of claims filed for subsidiary liability has drastically increased by 25,6 %, while the number of claims acknowledged by the courts has decreased from 30% to a – still remarkable – 26 %. The amount of damages recognized on the ground of subsidiary liability has doubled in one year up to 79.5 billion rubles (approximately 1,1 billion EUR) at the end of the second quarter of 2019.

In conclusion, it seems to us that in Russia there is a wider possibility to pierce the corporate veil, a possibility that is admitted – with different degrees of aggressiveness – in all European countries and in general in all common law legal systems.

It would be interesting to develop a comparative analysis that takes into consideration the elements whose presence, in distressed situations, is the ground for the liability of shareholders and directors towards unsatisfied creditors.