In 2022, many Western countries began to introduce unprecedented packages of economic sanctions against Russia. At the same time, foreign suppliers have begun to stop supplying products for fear of violating these sanctions. Under such conditions, many Russian enterprises, including large plants, are experiencing a difficult financial situation. In order to somehow reduce the amount of losses incurred, many Russian enterprises stopped paying for goods already delivered to international suppliers, citing a breach of contract by the counterparty.

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BBNP lawyers, representing clients, have encountered common cases of this practice. One example is the case filed by Mann+Hummel LLC (supplier) against Kamaz PJSC (buyer) to recover a multimillion dollar debt for the goods delivered.

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During the proceedings, the Supplier provided the original bills of lading, which confirmed the receipt of the goods by the Buyer's authorized persons and asked for the full amount of the debt owed to him, as well as a penalty for the use of other people's funds.

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The buyer objected to the penalty and asked for the moratorium on bankruptcy to be applied in accordance with the provisions of Decree of the Government of the Russian Federation No. 497 dated March 28, 2022, in force from April 1, 2022 to October 1, 2022, under which penalties are not allowed. In addition, the Buyer filed a counterclaim asking the Supplier to recover a multi-million dollar fine for violations under the Contract.

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The counterclaim is motivated by the Supplier's violation of its obligations under the contract to ship the goods according to a confirmed schedule, in connection with which the defendant charged a fine for the failure to deliver the goods. The Buyer also referred to the practice of interacting with the Supplier via e-mail and provided evidence that the Supplier adopted a strict order plan for the whole of 2022 in the format of electronic correspondence and stopped deliveries, thereby harming him.

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The Supplier, objecting to the Buyer's arguments regarding the counterclaim, indicated that the Buyer did not comply with the order approval procedure provided for by the Contract, the Supplier had no opportunity to assume supply obligations for an entire calendar year, and the correspondence submitted does not confirm deliveries, but only gives forecast figures for next year. Regarding the moratorium, the Plaintiff's representative indicated that the parties are Russian legal entities with current accounts in Russian banks., no restrictions on mutual payments They do not have each other, and also indicated that the Buyer did not provide evidence that he suffered from the circumstances that served as the basis for the moratorium.

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The court, having heard the opinions of both parties, decided to recover from the Buyer the amount of the principal debt in full, and to dismiss the counterclaim in full. Also, the court recalculated the penalties taking into account the period of the moratorium, arguing that the purpose of introducing a moratorium is to support business entities during a period of possible unfavorable economic situation. The court cannot recognize the recovery of a penalty from the defendant without taking into account the application of the moratorium as lawful, and a different interpretation of the procedure for applying the moratorium would significantly worsen the Buyer's position in relation to other business entities.

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This position is also confirmed by other court decisions, for example: Decision of the Moscow District Arbitration Court of November 23, 2022 N F05-29512/2022 in case N A41-71127/2021; Decision of the Arbitration Court of the Volga District dated October 28, 2022 N F06-22527/2022 in case N A55-31219/2021; Decision of the Moscow District Arbitration Court of December 12, 2022 N F05-31028/2022 in case N A41-41-2021 29613/2022; Resolution of the Moscow District Arbitration Court dated December 6, 2022 N F05-29629/2022 in case N A40-78279/2022.

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Thus, the practice of filing a counterclaim by the defendant on the basis of violations committed by the plaintiff is widespread. Buyers are doing everything possible to reduce the amount of claims and penalties. But if the situation is properly explained, courts often side with creditors and refuse to satisfy such counterclaims.

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Also, at present, there is already a stable judicial practice on applying a moratorium on bankruptcy. The courts massively apply the provisions of Decree of the Government of the Russian Federation No. 497 dated March 28, 2022 and do not charge penalties between April 1, 2022 and October 1, 2022, either under contracts or under Article 395 of the Civil Code of the Russian Federation throughout the Russian Federation.