Problematic aspects of the application of arbitration and insolvency institutions to protect the rights of creditors of debtor limited liability companies

Abstract

Relevance of the study. The right or interest of the interested creditor person must be protected by the commercial court in a way that is effective, that is, that corresponds to the content of the relevant right or interest, the nature of its violation by the debtor-company and the consequences caused by these actions.

The purpose of the article is to study the problematic aspects of the application of arbitration and insolvency institutions in order to protect the rights of creditors of limited liability companies-debtors.

The work uses a set of general scientific and special methods: system-structural analysis to study the mechanisms of protection of creditors of insolvent companies; comparative legal method for analyzing the procedural tools for the creditor's exercise of the right to protect property rights under the condition of improper fulfillment of a monetary obligation by an insolvent business entity, namely legal proceedings through the use of an arbitration clause and court bankruptcy procedures for the debtor company; the method of generalizing judicial practice in disputed legal relations.

Research results. The author stated that the commercial court in whose proceedings the bankruptcy of the insolvent business entity is pending is deprived of a proper and sufficient legally stipulated legal mechanism in order to ensure a full and comprehensive study of all the circumstances specified in the statement of the initiating creditor and the response of the debtor company, taking into account the admissibility, reliability and sufficiency of the evidence provided by the participants in the case, in confirmation or refutation of their claims and objections. This gap in competition legislation often causes the impossibility of proper and effective protection of the legal rights and interests of creditors in a practical aspect. The author established that the dispute between the participants in the legal relationship (the creditor and the debtor company) is resolved in the legal proceedings, and in the bankruptcy case – the commercial court verifies and controls the validity of the creditor's property (monetary) claims against the debtor company. If there is a dispute about the right, then this circumstance excludes the issuance of a decision to open bankruptcy proceedings, as a result of which the state court refuses to satisfy the applicant's demands. It was established that in the future the initiating creditor can use the procedural mechanism of the arbitration clause to protect its rights. The author proposed to return in law enforcement to the conclusions set forth in the resolutions of the Supreme Court regarding the legality and validity of consideration by local and appellate commercial courts of cases on the merits of the dispute, along with ensuring that the relevant judicial bodies properly investigate the circumstances of the validity, validity and enforceability of arbitration agreements.