insurers cannot, without giving reasons, refuse to insure bankruptcy trustees in insuring their liability in bankruptcy cases

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Insurance companies cannot, without giving reasons, refuse to insure bankruptcy trustees (AI) in their liability insurance in bankruptcy cases – it does not matter whether it is the main insurance of the IA or additional. Otherwise, according to the Supreme Court (SC), this is discrimination and abuse of the right. Lawyers and managers themselves note that the Supreme Court is trying to solve the problem instead of the legislator, and they fear that this position will lead to an increase in insurance rates.

The Supreme Court considered the issue of the legality of the refusal of the insurance company to conclude an agreement with the arbitration manager – a landmark decision was made on the claim of Ilya Matinyan, who applied to D2 Insurance JSC for additional insurance of his liability for six months. The manager proceeded from the fact that the company provides this type of insurance, its website contains the rules for it and the form of the contract. But “D2 Insurance” refused without explaining the reasons, noting only that “the obligation to conclude a liability insurance contract is imposed by law on the AC, but not on the insurer.” Ilya Matinyan’s claim was also rejected, and he went to court.

Arbitration courts of three instances recognized the refusal as legal, agreeing that insurers have no obligation to enter into such contracts and adding that the AC already has basic insurance in another company. Ilya Matinyan appealed this to the Supreme Court, and the dispute was referred to the Economic Board. As a result, the manager’s arguments were supported, although the case was sent for a new trial. The Supreme Court emphasized that under Art. 24.1 of the bankruptcy law, ACs are required to insure their liability, and in some cases, buy additional insurance to cover possible losses caused to participants in bankruptcy cases. This is a prerequisite for appointment to bankruptcy proceedings, providing “admission to the profession,” the board pointed out. Moreover, the fact that the manager has the main insurance is not a basis for refusing additional insurance – “the law does not limit the AC” in the right to additionally insure in several companies, and the absence of an agreement “may block the implementation of the AC activities in a particular case” and cause him to be removed from the procedure or even to bring to administrative responsibility, said the Supreme Court.

The collegium recalled the position of the Constitutional Court that the freedom to conclude a contract “is not absolute, should not lead to the denial or derogation of other rights and freedoms.” A company that has a license and the right to insure the liability of the AU, “having announced this publicly”, is not entitled to refuse to conclude an agreement without giving reasons, the Supreme Court emphasized, otherwise it “violates the principle of equality between arbitration managers as clients of the insurer.” The conditions for different subjects may not be the same, but “cannot be arbitrary”, however, the insurer “did not motivate its refusal” and did not provide any evidence substantiating it. This “indicates discrimination” and “unreasonable selectivity in clients”, “contradicts the principles of good faith and reasonableness” and “is one of the cases of abuse of the right,” the Supreme Court concluded.

Lawyers and AC are pleased that the SC has drawn attention to the complexities of insuring managers. “This is one of the most serious problems for practitioners,” emphasizes Eduard Olevinsky, head of the legal bureau Olevinsky, Buyukyan and Partners. Advisor to BGP Litigation Anton Pomazan notes that “very few insurance organizations offer this type of insurance”, and “a selective approach to the insurance companies applying to them allowed insurers to reduce numerous risks.” Probably, now a small circle of insurance companies working with ACs will become even narrower, he admits – the decision of the Supreme Court will only “formally simplify” the possibility of ACs to insure, but it is unlikely to globally solve the problem, and may even exacerbate it due to the introduction of protective tariffs by insurers (see “Kommersant Online”).

Anna Zanina

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