BANKRUPTCY CODE OF UKRAINE: FEATURES AND INNOVATIONS

Bankruptcy Code of Ukraine, passed by Parliament a year ago – October 18, 2018, comes into force on October 21. That is the reason why the Law “On Recovery of the Debtor’s Insolvency or Bankruptcy”, which has been regulating bankruptcy relations since 1992, is repealed.

There is no secret that the bankruptcy procedure in Ukraine was always long lasting and ineffective. That is why in the World Bank’s Doing Business 2019 rating in the category of “insolvency settlement” Ukraine occupies a critical 145th place out of 190 possible. This disappointing indicator means that the Bankruptcy Institute of Ukraine needs to be immediately reformed and improved. This is the Bankruptcy Code’s of Ukraine task, but we will see if it can cope with it. For now, we just propose to consider the main innovations of the code.

Change of the rules governing the initiation and duration of bankruptcy proceedings

Both a debtor and a creditor can initiate bankruptcy procedure of the legal entity. To do this, you must file a relevant application with its annexes to the Commercial Court, located on a legal entity’s area. At the same time, the new code significantly simplifies the requirements for initiating bankruptcy proceedings at the request of the creditor. Under the new rules, the minimum amount of debt of a legal entity to the creditor should not be 300 minimum wages (for today – 1 251 900 UAH). Moreover, it is irrelevant at all, as is the existence of a judgment on debt collection, on the basis of which enforcement proceedings are initiated. From now on, for a creditor to be able to initiate bankruptcy proceedings, only the presence of the debtor’s outstanding, recognized and uncontested obligations to the creditor is sufficient.

In addition, the duration of the bankruptcy procedure was reduced, primarily due to the fact that only certain types of court decisions are appealed in cassation, in particular, the resolution on the recognition of the debtor bankrupt and the opening of the liquidation procedure, as well as the decisions on:

  • opening bankruptcy proceedings;
  • the closure of bankruptcy proceedings;
  • results of consideration of creditors’ claims.

At the same time, the debtor’s creditors are entitled to recover the property that is the subject of the mortgage agreement, outside of bankruptcy proceedings, if the issue of rehabilitation or transition to liquidation is not settled within 170 days. Thus, debtors lose the ability to delay the resolution of these issues deliberately.

Arbitration Manager

The Code raises the minimum amount of an arbitration manager’s principal award and also stipulates the obligation of the debtor or creditor to prepay a reward to the arbitration manager for three months of work at the amount of 3 minimum wages (12 519,00 UAH), when initiate the bankruptcy proceedings.

The arbitration manager is selected by an automated selection system from the managers entered in the Unified Register of Arbitration Managers of Ukraine. Three candidates, selected on the principle of random selection, are invited to participate in the case. If neither of them has filed an application to participate in the case, the appointment of the arbitrator shall be at the discretion of the court. If several arbitration managers have filed an application, the court shall award the first one selected by the automated selection system.

You may like
A new law on virtual assets: the picture is formed, but without details. On September 8, 2021, the Verkhovna Rada has finally adopted the long-awaited law "On Virtual Assets", which clarified many ambiguous points. This is especially true for the status of cryptocurrency and the rules of its circulation in the country. Let`s take a closer look at novelties. An ambiguous term Let's start with what the legislator actually means by "virtual assets". There are the following features:  they are an intangible good (cannot be represented on tangible media)  fall under the list of objects of civil rights (that is, they can be owned and be disposed of)  represent an electronic form of a set of data (essentially, they are blocks of information put in order);  the existence and circulation of assets are due to software tools (specific electronic environment). From these features we can draw the following conclusion: virtual assets are not limited to cryptocurrency. Digital currency is part of the concept, but other instruments, such as tokens, NFTs, or even in-game items, fall under the definition. Actually, the actual existence of most digital products, having a certain value, is due to the software environment (ecosystem), either it is blockchain technology, a trading platform, or an online game server. It should be noted that the attempt to define virtual assets was already made in the adopted Law of Ukraine in counteracting money laundering. In this act, they understand it as digital means of payment, which goes against the new definition. As a result, there are now two different explanations for virtual assets, which causes significant confusion not only in regulation but also in interpretation. It is definitely necessary to expect clarifications from competent state bodies. Let's return to the new law. Its application covers legal relations in which the "Ukrainian element" is present:  provider or recipient of services represented in Ukraine;  an agreement according to which the turnover of virtual assets is carried out in accordance with Ukrainian legislation;  the acquirer of assets (or both counterparties) is a resident(s) of Ukraine. The law also introduces an interesting division of all virtual assets into two groups: secured and unsecured. Here again, there is a problem of interpretation. The first category includes products exchanged for (state) currency, the second category includes instruments that can be exchanged only for other digital assets. There is an alternative opinion: that the turnover of secured assets is supported by real goods (money or other property), while unsecured ones are not supported by anything. The latter interpretation is the most credible, as the new law stipulates that virtual assets are NOT means of payment. Moreover, they cannot be exchanged for real goods, be they property, services or money. This significantly narrows the potential for the use of virtual assets not only for commercial but also for civilian purposes. About obligatory licensing The new law states that in some cases, the use of virtual assets will require licensing. The 4 types of activity are mentioned:  storage and management of virtual assets (or its` keys)  servicing of exchange operations with virtual assets (both for other analogues and for real goods);  translation of digital assets;  any intermediary services. A list is quite impressive, but there are some important exclusions:  if your service works with cryptocurrency wallet (it means users can dispose of accumulations into cryptocurrency independently);  If your service works on smart contracts or decentralized protocol, based on which internal transfers are performed. As to intermediary services, everything is more compicated. Actually, any mediation is based on the public share offering. That is why it is subject to licensing. How to get a license? A company that wishes on legal grounds to engage in virtual assets must satisfy legislative requirements. The key role is played by the minimum amount of the statutory capital, which equals 1,19 million hryvnyas (for non-residents it is 5,95 million hryvnyas) in case of storage and administration. For other types of activity (trading, translation and mediation services) the minimum size of the statutory capital amounts to 595 thousand hryvnyas (for non-residents is 2,98 million hryvnyas). The order of the registration of license:  to compose an application and prepare documents.  to pay state fee (68-136 thousand hryvnyas for residents and 340-680 thousand hryvnyas is for non-residents).  to pend review of the request (30 days).  to get a license. The duration of the license is 1 year. No norms about the continuation of legal force of permission are set (we are expecting amendments or explanations from the Ministry of Digital transformation of Ukraine). Notably that non-residents must pay a far greater sum, than domestic companies. The Ukrainian legislator obviously encourages an internal market, getting rid of a strong foreign presence (that, in fact, coincide with modern politics of the state on the whole). Together with an application, the following documents must be prepared: The access code to the copy of the Statute of the company (or the foundation agreement) kept in an electronic file in the database of the Unified State Register of Enterprises and Organizations (USREO);  Funding sources of the statutory capital (where the money are taken from);  confirmation of the actual injection of money;  information about beneficiaries (special attention must be paid to business reputation);  the information about the director and founders;  the check about payment of state fee;  the internal regulations, in accordance with which ones, the privacy policy rules are regulated. In the terms of volume of necessary documentation of licensing is very alike with complete registration of legal entity. It is understood that the state wants the severe adjusting of activity of organizations that will engage in virtual assets. Is it already possible to get a license? The adoption of the law by the parliament is a significant step forward in adjusting and legal market of virtual assets creation in Ukraine. However, the new rules haven`t come into effect yet - their term of introduction depends on making amendments in the Internal Revenue Code. It is yet unknown, when a legislator will decide to enter the renewed system of taxation for such assets. Being "IT-hub" and territory, where cryptocurrency enjoys large popularity, the question of taxes must be decided maximally safely. Despite the presence of obvious gaps in interpretation, a new law on virtual assets gives the official narrative of what takes place and that, how the legal relationships related to cryptocurrency will be regulated. It is to be hoped that in the nearest time the Ministry of digital information will give out the detailed explanations concerning debatable norms.
20/01/2022

We will
call you