“Fluctuation of exchange rates in the performance of a monetary obligation in the framework of enforcement proceedings” — article by Tatiana Tereshchenko in collaboration with Alexander Sergeev for the Arbitration disputes
Fluctuations in exchange rate differences, if the debt is denominated in foreign currency, can significantly affect the performance of the monetary obligation.
The most acute problem is in enforcement proceedings, when the obligation is enforced. The amount of recovery received from the debtor in foreign currency, the bailiff is obliged to convert into rubles within the prescribed period and transfer it to the creditor. However, if such conversion is not carried out due to various reasons in a timely manner, there is a loss in the form of exchange rate difference. In such cases, the question of who — the debtor, the creditor or the state responsible for the actions of the bailiff must bear the so-called currency risks.
As will be shown below, the current legislation does not provide a direct answer to this question. The existing court practice also does not bring clarity to the situation. In addition, it indicates the existence of legal uncertainty as to how these currency risks should be distributed in civil relations. Especially if the actions (inaction) of the subjects involved in the relationship are influenced by external factors.
Therefore, the development of a single algorithm of legal assessment for different situations, in our opinion, should be based on a variety of circumstances. It is necessary to take into account the importance of the category of legal risk in civil law, the conditions for bringing to responsibility, including for harm caused by unlawful inaction of the authority, especially enforcement proceedings and its importance for the dynamics of obligations in general and monetary obligations in particular.