LIMITS OF FREEDOM OF THE COMPETITION MANAGER DURING THE SALE OF PROPERTY UNDER THE LAW OF ENGLAND

Abstract

The English model of property sales in the debtor's insolvency procedure is built on a combination of broad discretion of the bankruptcy trustee and a high threshold of judicial control. On the one hand, the bankruptcy trustee has the right to independently choose the method of selling assets – public auction or private contract, as well as to determine the price, terms of sale and division of property into lots. On the other hand, the mechanisms of judicial supervision and appeal of the liquidator's actions by creditors are practically ineffective due to the extremely high standard of intervention: the court is ready to cancel the liquidator's decision only when it is absolutely unreasonable, absurd or erroneous. Such an approach, designed to protect the liquidator from constant litigation and ensure the efficiency of the procedure, actually leaves creditors defenseless against unilateral decisions.
The article examines the regulatory consolidation of the powers of the liquidator, in particular regarding the sale of property, as well as the peculiarities of the sale of secured property, where the mortgagee retains the right to independently sell outside the general mass. The judicial practice is analyzed, which forms a double standard for checking the liquidator's actions: material (absurdity of the decision) and procedural (taking into account appropriate factors, the need for professional advice).
A comparison is made with the Ukrainian model, which, unlike the English one, establishes exclusively an auction method of sale through an electronic trading system, which ensures transparency, but deprives the procedure of flexibility in the sale of specific assets. The conclusion is made about the impossibility of directly borrowing the English model in Ukraine due to the different level of trust in managers and the lack of developed professional self-regulation. At the same time, individual elements – in particular, the possibility of private sale with the consent of the creditors' committee – can be implemented subject to increased judicial control.