EQUITY has ensured protection of interests of PJSC «UkrInCom» / PJSC «UkrInBank»

The EQUITY team ensured the protection of interests of the client and persuaded the Cassation Commercial Court to refer the matter to the Grand Chamber of the Supreme Court to determine the legal status of PJSC «UkrInBank» in connection with the change of its name to PJSC «UkrInCom». This is what is stated in the Decree of the CCC of the SC of January 23, 2019 in case No. 925/698/16.

Such a referral is important for the purpose of protection of the interests of the client - PJSC «UkrInCom» due to the fact that the CCC actually departed from the position of the Joint Chamber of the Commercial Court of Cassation formed in its resolution of August 3, 2018 in another case No. 910/8117/17 (case «UkrInCom» V. PJSC «Obolon»), whereby the change in the name of the legal entity from PJSC «UkrInBank» to PJSC «UkrInCom» makes it impossible for the latter to retain rights in the assets of PJSC «UkrInBank», including the rights under loans.

That legal opinion has given rise to two opposing approaches in judicial practice:

1) According to the  «general legal capacity» PJSC «UkrInCom» is the same person as PJSC «UkrInBank», that is, the absence of a special legal capacity can not exclude the capacityof the person in other legal relationships, and therefore, PJSC «UkrInCom» must perform the obligation under deposit agreements to the depositors and accordingly has the right to collect debts under the loans extended previously. The above approach has remained dominant and has been fully supported by the civilist doctrine and practice of civil courts.

2) PJSC «UkrInCom» has no right to its own assets acquired at the time it had the status of a banking institution, and, therefore, it may not collect the debts under loan agreements extended  by PJSC «UkrInBank» or fulfill obligations to the depositors. Such an approach, initiated in the aforementioned Resolution of the Joint Chamber of the CCC of the Supreme Court of August 3, 2018, in case No. 910/8117/17, is now mistakenly followed by certain commercial courts, while not only violating the rights of a legal entity, a former bank and its shareholders (who managed to get cancellation of the illegal decisions of the NBU on the introduction of temporary administration and liquidation), but also ignoring the rights of the depositors (creditors) of the institution, leaving them without hope for full recovery of their own savings.

Thus, the EQUITY team congratulates the Commercial Court of Cassation on its ability to step aside from its own positions and hopes that the Grand Chamber of the Supreme Court will not disregard this overriding «exceptional legal problem», but will accept the complaint for consideration and will form a clear opinion on the status of a legal entity after the judicial cancellation of the procedure of introduction of a temporary administration and liquidation of a bank, filling in the existing legislative gap.

The EQUITY team (consisting of Oleg Malinevskiy, a partner; Dmytro Tylipskyi and Oleksiy Stepanenko, senior lawyers and attorneys-at-law; Anton Romashko and Maxym Kuzmenko, junior lawyers) is working on the project of protection of interests of PJSC «UkrInCom» and its shareholders.

The ruling in the case is available here.