On October 21, 2019 at 11:00 Mari Schihalejev will defend her doctoral thesis „Debtor-Related Creditors’ Claims in Insolvency Proceedings“.
Assoc. Prof. dr. Andres Vutt (University of Tartu)
Assoc. Prof. dr. Lina Mikalonienė (Vilnius University)
Estonian insolvency law recognises two types of proceedings for legal persons. Reorganisation is regarded as overcoming the company’s solvency problems by applying a set of measures to ensure its sustainable management. In bankruptcy proceedings, business activities will be terminated if economic difficulties are no longer temporary. Although these proceedings differ in nature, the objective of both procedures is to satisfy the creditors’ claims. To this end, all creditors file a claim against the debtor in the proceedings, which gives them the right to vote and have the claim satisfied. Debtor-related creditors, such as a shareholder or their spouse, are also allowed to participate in the proceedings. However, they may have a malicious intent to take decisions in favour of the debtor and their related persons and control the proceedings. Moreover, the claims on which the votes are based may be fictitious. Yet, insolvency proceedings should be controlled by independent creditors with real claims. In reorganistion proceedings, such situations must be prevented where debtorrelated creditors can vote in such a way that their votes will play a decisive role in the acceptance of the reorganisation plan, because this may harm interests of creditors. Moreover, insolvency of the debtor may be intentionally caused, which means that the trustee is required to file a claim for compensation for damages against the persons liable in bankruptcy proceedings. If the debtor can control the proceedings through related creditors, it may be impossible to file such a claim, which does not protect the interests of the creditors. Furthermore, shareholders may file a loan claim, which is satisfied in the same ranking as other unsecured creditors’ claims. Although according to the general opinion, this loan claim should be satisfied after all other claims have been covered, because such a loan is a capital investment. The aim of this dissertation is to examine whether Estonian insolvency law safeguards the common rights and interests of creditors when debtor-related creditors participate in insolvency proceedings, and whether restrictions on the participation of such creditors should be laid down. The author has come to the conclusion that Estonian insolvency law does not protect the common rights and interests of creditors in insolvency proceedings when debtor-related creditors participate in the proceedings. Therefore, certain rules on the participation of debtor-related creditors should be laid down.