Coordination of claims against debtors from different grounds in bankruptcy

Abstract

In this article the author considers models of coordination of claims against debtors from different grounds in bankruptcy. The author's attention is focused on comparing the model of joint and several joint obligations and the model of shared obligations in the context of insolvency (bankruptcy) relations. Based on the analysis of a number of foreign legal orders (France, Germany, Quebec, Louisiana, the Netherlands), as well as on the Russian legal experience, the author has proved the necessity of using the model of shared obligations in bankruptcy, because another solution risks to violate the balance of rights and legitimate interests of the participants of bankruptcy proceedings, mainly creditors on security claims. The author proposes the allocation of 3 criteria on the basis of which it is possible to determine the nature of coordination of claims in bankruptcy: (1) the criterion of fairness, (2) the criterion of judicial discretion and (3) the criterion of the substance of the obligation. The necessity to determine the model of coordination of claims against debtors from different grounds in bankruptcy is actualized in the context of an isolated assignment, when a creditor on a tort claim is not entitled to acquire unreasonable advantages from a presumably solidary connection between the obligations, just as in the case of assignment of a claim under a contract such assignment should not be recognized as invalid.

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