Seminar on Bankruptcy Law

Transcription

1 Seminar on Bankruptcy Law Alberto Núñez-Lagos Burguera Rio de Janeiro, October 25-26, 2001

2 Summary I. Main aspects of the reform, key aspects of the success II. The structure of the Spanish Insolvency draft Law III. Transnational insolvency: Spanish and EU views IV.Liquidation or restructuring?

3 I. Main aspects of the reform, key aspects of the success Current situation 200 years old laws» Commercial Codes of 1829 and 1885, Civil Procedure Law of 1881, Bankruptcy of Railways 1869, Suspension of Payment laws of 1992, etc. More than 30 laws and regulations Draft law containing a full reform will be filed by the Government with Parliament before year end» more than 4 drafts containing a full reform have been prepared since 1926 without success

4 I. Main aspects of the reform, key aspects of the success The reform One proceeding for» restructuring and liquidation» individuals and businesses» previously 4 proceedings, Suspension of Payments, Quita y Espera, Concurso and Bankruptcy One law» substantive and procedural matters are regulated in the same act» previously: procedural matters were regulated in the Procedural law

5 I. Main aspects of the reform, key aspects of the success More active role by the judge in charge» no government body as in the UK, Canada, Mexico» previously: judge delegates did in fact managed the proceeding One judge:» the judge is in charge of any issue related with the insolvency, not only with the restructuring or liquidation, exclusive jurisdiction» previously certain matters were decided outside the insolvency proceeding, e.g. claims by workers, enforcement of any resolutions including resolutions by tax authorities» partial exception: administrative liquidation for special licensed activities (banking, insurance, securities) Special judge:» special insolvency courts will be created» judges will have special skills (e.g. accounting skills)

6 I. Main aspects of the reform, key aspects of the success No criminalization of the insolvency:» previously Insolvency could be a criminal offence» previously the debtor could be imprisoned or arrested at his domicile as an interim measure» now insolvency is understood as possible scenario of any business and not only of mismanaged business Delegates of the judge» one lawyer one auditor both with 10 years of experience» one non secured creditor» severe regime to avoid conflict of interest» responsibility regime like directors» fees are set out by law will depend on (i) the assets of the insolvency, (ii) the complexity of the proceeding

7 I. Main aspects of the reform, key aspects of the success Key aspects Transparency» all agents must act and agreements need to be public in order to avoid the usual secret agreements and conflicts of interest, e.g. Between debtor and certain creditors, receivers and the debtor, shareholders and certain creditors, etc.» The fees of receives need to be established by law» the judge need to be fully involved Speed in the management of the cases» exclusive jurisdiction» specialised judges (insolvency culture)

8 II. The structure of the Spanish Insolvency draft Law Anticipation to the insolvency» if not, no assets are left no chance for restructuring» no criminalization no fear to file for insolvency proceedings» civil sanctions (e.g. Article Spanish Corporation Law, compulsory request for winding up or directors responsibility proceeding in the draft law) Structure of the proceeding; 2+1 phases common phase» in order to determine the assets and liabilities Delegates report on assets and creditors list in 3 months creditors may claim for incorrect inclusion of their credit in a short procedure

9 II. The structure of the Spanish Insolvency draft Law creditors agreement phase or alternatively liquidation phase» in order to reach a creditors agreement (either agreed in advance outside court or within the insolvency proceeding)» in order to liquidate the assets and pay creditors parallel procedure to determine responsibilities of the debtor for the insolvency situation

10 III. Transnational insolvency: Spanish and EU views The problem In a global market, like the EU, transnational insolvencies are common Insolvency laws are extremely local Until now it has been impossible to harmonise the insolvency laws within the EU unlike many other laws (e.g. Corporation laws)

11 III. Transnational insolvency: Spanish and EU views The solution Regulation nº 1346/200 will be in force in March 2002» Sets out a co-ordination scheme between the principal insolvency proceeding and the subsidiary proceedings insolvency filed in other EU countries where the debtor has assets» Sets out rules of conflict» is a partial solution Rules of conflict in the draft law» Sets out a co-ordination scheme between the principal insolvency proceeding and the subsidiary proceedings insolvency filed in other EU countries where the debtor has assets» Sets out rules of conflict» is a partial solution

12 IV. Liquidation or restructuring? Advantages and Inconveniences Liquidation» high cost (e.g. Workers severance payments)» loss of goodwill» liquidation value» side effects on clients and suppliers» side effects on consumers» side effects on financial or insurance system Restructuring» low cost (lay offs only as necessary)» goodwill continues to generate income» going concern value» business with clients and suppliers continues» consumers confidence» markets confidence

13 IV. Liquidation or restructuring? The draft law is pro restructuring» creditors agreements can be proposed almost any time» creditors agreements can be agreed outside court for ratification by the Court» the content of the creditors agreement is flexible (debt conversion into equity, etc.)» even if liquidation is requested the draft law prefers the sale of the business or business units and not assets» enforcement by certain secured creditors is freezed during the initial period of the insolvency proceedings in order to give restructuring through a creditors agreement a chance

14 IV. Liquidation or restructuring? Special legislation for financial insurance and securities business is needed due to the special importance of these business in a developed economy