There is a real war between creditors and debtors, and it is costing adversaries on both sides of the front, says Denis Almakaev, senior lawyer at Hogan Lovells. But among the winners there will always be a third party - lawyers who will earn on the conflict. The deplorable situation in the economy, moving from crisis to stagnation and vice versa, and clearing the banking sector supply them with projects. And not only in Russia, but also abroad. Recently, in the wake of bankruptcies of banks and large enterprises, the number of disputes over debt collection abroad has grown, states Alexander Zablotskis, head of the legal department of A1.
Demand from DIA
Lawyers have found a large customer for their services in the person of the Deposit Insurance Agency (DIA). Since 2013, almost every second bank has dropped out of the banking system: in five years, the Central Bank has deprived more than 400 banks of its licenses and sanitized 30 more, said regulator Elvira Nabiullina in November. The DIA is engaged in the liquidation of collapsed banks, it is also trying to return funds to the bankruptcy estate in order to settle accounts with creditors. On average, they managed to return to creditors less than half of their investments - 41.5%, the DIA points out in reporting: the claims of the first-priority creditors were satisfied by 64.5%, the second - by 36.2%, and the third - by 22.4%. Now, DIA is liquidating 346 banks with a debt of more than 3 trillion rubles. Basically, the agency is trying to return assets in the Russian courts. Attempts to reach the foreign assets of the former owners of collapsed banks are rather rare.
Politics does not interfere
“I would not say that the relations between Russia and the West somehow negatively affect the chances of Russian clients,” said Almakaev. In cases that were conducted by Hogan Lovells, foreign judges abstracted from political noise and evaluated the case on the merits, he continues: "It is useless to refer to politics if you are accused of having stolen millions of dollars." Neither the sanctions nor Brexit at the moment have had a serious impact on the search for assets of fugitive bankers, Panich agrees. We saw situations where foreign law firms, just in case, refused to work for Russian clients, at least somehow affected by any sanctions, even in the absence of a direct sanction ban, he recalls: "Our company had no such problems."
Work on the return of assets is in no way connected with the policy, and international sanctions, regardless of the jurisdiction of the dispute, do not affect the bank’s right to indemnify, agrees the representative of the DIA.
The loudest and most successful example is the case of the founder of Mezhprombank, former senator Sergey Pugachev, in which Hogan Lovells represents the interests of the DIA abroad. The agency attracted Pugachev to subsidiary liability for the debts of Mezhprombank at 76 billion rubles, after which in 2014, the High Court in London succeeded in freezing the assets of the former senator for $ 2 billion worldwide. Two years later, the court allowed the sale of two houses of Pugachev: the estate of Lower Venn Farm was sold in March 2017 for £ 1.6 million, and the buyer for the Old Battersea House wasn’t found until now. In October 2018, a British court allowed the DIA to sell another Pugachev house on Glebe Place in London.
Talking about the price is now incorrect, says a representative of the DIA: it depends on the state of the real estate market in London and offers from buyers. In addition, the agency intends to foreclose on the French villas of the former senator, says the representative of the DIA.
According to Pugachev, his lawyers are going to appeal the decision of the court to sell the house at Glebe Place. And Old Battersea House was put up for sale more than a year ago, Pugachev told Vedomosti: "But not a single offer was received because of the difficult situation in the real estate market in England in connection with Brexit." According to Pugachev, he bought a house for $ 30 million: “I did not object to the decision to sell the house. However, if the sale takes place, I will submit an application to an English court and demand that all the proceeds from the sale be transferred to my personal account. ” Pugachev argues that the reason for this is the decision of the judge of the High Court of London Beers of December 8, 2017, who acknowledged that all property of trusts in England, according to the former senator, is his property.
DIA indicated that the money from the sale of Lower Venn Farm went to the bankruptcy estate of Mezhprombank. And the position has not changed, said the representative of the DIA. The money was not received by the bankruptcy estate, says Pugachev: the funds were transferred to lawyers and went to pay for their services.
According to the DIA, as of October 31, 2018, the competitive weight of Mezhprombank was 5.7 billion rubles, of which 5.6 billion came from the sale of property, repayment of debts to the bank, etc. At the same time, the total costs of conducting bankruptcy amounted to 3.1 billion rubles., of which 2.8 billion - for legal services. Thus, on the basis of data from the DIA, lawyers inherited almost half of the competitive mass.
The costs of legal services eat up a substantial part of the bankers, Dmitry Kletochkin, a partner of the law firm Rustam Kurmaev & Partners, says, and the figure of 50% is quite normal: “Probably, creditors are ready to fight, hoping to return an amount several times higher than the costs of legal services” . In case of bankruptcy of companies, the bankruptcy trustee can spend no more than 3 million rubles, which, as a rule, is about 5–10% of the bankruptcy mass, the arbitration manager Yevgeny Semchenko points out: “All expenses over this limit must be approved by the court - he gives such permissions very reluctantly ".
DIA in court denies that Hogan Lovells represents his interests, and refuses to provide documents confirming the conclusion of a contract between the DIA and this law firm, Pugachev said. DIA does not work directly with international law firms on Mezhprombank, they are attracted by consultants accredited by the agency, explains Alexey Dudko, partner of Hogan Lovells. In total, 25 organizations are accredited to work with the agency. Which one of them Hogan Lovells works with, and Dudko does not disclose the amount of the contract. “The decision whether or not to attract international lawyers is made by a committee of creditors, and their services are financed only from the masses,” he says.
According to the DIA, legal services for the bankruptcy of Mezhprombank are provided by the Moscow Bar Association Yakovlev and Partners: the company is entitled to 630,000 rubles. monthly, as well as additional remuneration from 2 to 10% depending on the amount received by the bankruptcy estate, but not more than 90 million rubles. Hogan Lovells works legally, said Yakovlev & Partners managing partner Andrei Yakovlev, declining other comments.
The DIA itself also attracted international law firms to collect information about foreign assets of bank owners. According to the state procurement website, in 2015, the agency entered into three contracts with Hogan Lovells (totaling £ 185,000), as well as a contract with Herbert Smith Freehills ($ 106,200), and in 2016 with Marks & Sokolov ($ 140 000). In 2017, DIA entered into another contract for the provision of legal services with Hogan Lovells for 5.2 million rubles. And the most highly paid law firms that attracted DIA to work with the top 10 collapsed banks by the size of their holes were Vektor Pravo (10 million rubles a month), Quorum (two contracts for 8.5 million and 5 million) and "Case" (4.1 million), follows from the DIA. The representative of the DIA refused to comment on the contracts with the consultants and their conditions, since the information can be used by potential defendants to the detriment of the interests of the liquidated banks and their creditors.
DIA managed to find foreign assets of the beneficiaries and other banks - Master Bank and Pushkino, the agency’s general director Yuri Isaev said in 2016. However, the DIA did not report on the commencement of legal proceedings abroad and does not comment on these processes.
Assets of bankers are not only DIA. In 2016, one of the lenders of the collapsed Vneshprombank, Panabroker, discovered eight apartments in Manhattan, which allegedly belong to the former president and co-owner of the bank Larisa Markus (sentenced to 8.5 years in prison). The company filed a $ 1.57 million lawsuit against the companies that own these properties, which, according to Panabroker, were established by Marcus. In early 2017, the DIA managed to achieve recognition of the priority of the Russian bankruptcy of Vneshprombank in a US court, says Sergey Sokolov, partner at Marks & Sokolov (represents the interests of the bank): the court indicated that any creditors must make their claims during bankruptcy in Russia. Bankruptcy Vneshprombank not completed, the DIA, as a bankruptcy trustee, conducts all necessary actions, he added, without disclosing the details of the trials. Not ready to talk about them and the representative of the DIA.
The recovery of tens and hundreds of millions of dollars from debtors who have fled abroad is a complex and complex task, says Zablotskis. “When bankers go abroad, it’s hard to extradite them from there, and when assets are withdrawn abroad, it’s hard to get them back,” Nabiullina admitted. Debtors are easy to hide assets, but creditors have to make great efforts to get to them, says Almakaev. Literate lawyers work for the debtors, who know how to make the recovery difficult for the claimant, he continues, so in every major case, you have to invent unique legal techniques, which then become precedents. According to him, they formed the practice of cross-border debt collection of the case of Pugachev and the former chairman of the Kazakh BTA Bank, Mukhtar Ablyazov. Since the last London court decided to recover more than $ 4 billion, the bank reported.
There are two options that a lender can choose in order to get to the debtor’s foreign assets, says lawyer of arbitration practice “Egorov, Puginsky, Afanasyev and Partners” in St. Petersburg, Ice Lidzhanova. The first is to appeal to a Russian court, and then seek recognition of his decision abroad: the reason for this may be, for example, bringing the owner or management of a bank to secondary liability. The second option is to immediately appeal to a foreign court, says Lidzhanova. The lender may file a claim directly in another country - for example, if the debtor lives there permanently, he has foreign assets, etc., Almakaev says: in some jurisdictions you can file a claim even if the defendant is just there when the proceedings start hand him a subpoena.
There are enough tools in both international and national law to effectively repay debts, the main thing is to use them properly, Almakaev said, but limiting the problem banks ’owners and managers to travel abroad could help. The Central Bank has repeatedly stated the need to do this. The idea was supported by the chairman of the State Duma Vyacheslav Volodin and the Ministry of Finance. “I think that in general this idea is sound, because I’ve got tired of watching at the DIA Supervisory Board, how we are chasing these bankers around the world and trying to sue, award, etc.,” said Alexei Moiseev, Deputy Finance Minister (quote from TASS).
But although there are enough tools for arresting and selling assets, an attempt to seize money from the debtor can make the creditor not richer, but poorer. Debt collection abroad is a very expensive process, Almakaev said. It is high costs that most often force lenders to surrender in the fight for assets, says partner Alexey Panich of Herbert Smith Freehills. Courts can last from two to five years, and expenses average $ 5 million to $ 30 million, says Zablotskis: not everyone is willing to risk and spend such an amount, knowing how high the risks are to get nothing. “Therefore, claimants often attract professional investors and fans, who specialize in such projects and are ready to invest their own funds, A1 is one of them,” he continues.
There are, however, happy exceptions. Sometimes the delivery of the agenda is enough for the debtor to go to the world, says Lidzhanova: debtors are more often reconciled than judged to the end, but the information about such agreements is not always public.
Who will earn on the lender
Even well hidden can be found. There are firms that specialize in searching for assets, some of them are looking on the Internet and databases - now you can find most of them in assets, says Zablotskis. Detective agencies are also involved, which conduct full investigations, he continues: for example, to find real estate, they will find out where the debtor was vacationing, where he rented cars, where he applied for public services. By narrowing the search down to a specific area, you can begin to check all real estate in registries, the debtor may not be the owner, “but his close acquaintances, such as classmates, sometimes come across,” he says, stating that not all the information collected by detectives can be used in the trial.
Lawyers can also search for assets in small cases, Lidzhanova notes: they also work with insiders, which can be ex-wives, partners or banker employees. The latter are extremely interested in the fact that it is not the owners who are involved in subsidiary liability, but the owner of the bank, she stresses.
It is important not only to find the assets, but to get them arrested as soon as possible, Almakaev notes: “For example, in one of the cases we did, the trader withdrew a large amount abroad from the employing company”, the money was quickly arrested without delay. , thanks to which the case ended successfully. In addition, an English court may require the defendant to report all of its assets throughout the world. The respondents do not want to do this, Almakayev continues: “Instead, they are trying to guess what assets the claimant is aware of, and reveal them, hiding the rest. If it turns out that some assets were hidden, the court may bring the defendant to criminal responsibility, including jailing for up to two years. ” For example, in 2009, a London court decided to disclose information about the assets of Ablyazov, and a year later transferred them under external control, as the banker violated the prohibition on the disposal of property.
The hardest part in the fight for assets is proper coordination of work between parallel trials in different countries, Almakaev says: it is highly desirable that the law firm has offices in all key jurisdictions, and not just hired subcontractors. It cannot be said that in such cases international law firms have a global advantage over Russian ones, Lidzhanova argues: “A lot of information can be obtained from insiders in Russia, and it is easier for national firms to do this”. The decision which law firm to attract - international or Russian - depends on the specific case and the chosen tactics, says Lidzhanova: if you first need to get a decision in a Russian court or join bankruptcy in Russia, it is more expedient to involve domestic lawyers. In addition, national firms are part of international alliances and can attract foreign colleagues to search for assets abroad, she says.
The existing pool of international law firms, which are engaged in collecting debts from bankers who have fled, is still enough, and this market is unlikely to become widespread, believes KIAP managing partner Andrei Korelsky. Talking about a new market for lawyers in connection with clearing the banking sector is not necessary, I agree Zablotskis. Such cases are a piece of goods, Korelsky concludes: lawsuits are not always fully satisfied, but the costs of lawyers in foreign courts start at $ 1 million and up to infinity.