The essence of netting off counterclaims and the problems of its application

Abstract

The author made an attempt to reveal the main approaches on definition of netting off (balancing) in the judicial practice of Russian Federation. The issue of the conditions and consequences of qualifying netting (balancing) as a form of offset is analyzed, taking into account the bankruptcy law restrictions on transactions that violate the priority and proportionality of satisfying creditors’ claims. It is noted that in practice, courts allow the netting of counterclaims, which violates such restrictions. The article provides a comparative overview of various approaches to determining offset and netting off in the absence of legislative provisions on the last one. The author comes to the conclusion that netting off should be considered as a type of offset, so the rules on offset during the suspect period should be applied with consequences regarding the restitution of the bankruptcy assets.