INTERNATIONAL INSOLVENCY

Transcription

1 FOURTH EDITION 2015 FOURTH EDITION 2015 FOURTH EDITION 2015 INTERNATIONAL INSOLVENCY Group insolvency and directors duties A GLOBAL GUIDE FROM PRACTICAL LAW General Editor: J William Boone JAMES-BATES-BRANNAN- GROOVER-LLP INTERNATIONAL INSOLVENCY Group insolvency and directors duties A GLOBAL GUIDE FROM PRACTICAL LAW The publication of the fourth edition of International Insolvency: Group Insolvency and Directors Duties (formerly International Insolvency, Jurisdictional Comparison) continues to expand its jurisdictional scope as well as its analysis on directors and officers duties in the zone of insolvency. The recent global financial crisis, which resulted in a number of international companies becoming financially distressed and seeking relief through insolvency filings, has highlighted deficiencies in the current international law and various domestic legislative structures in addressing the multitude of cross-border issues arising in the administration of a distressed global company. With commentary from leading lawyers addressing complex cross-border insolvency issues and rescue provisions, this fourth edition of International Insolvency: Group Insolvency and Directors Duties gives law firms and corporate counsel an insight into the key insolvency issues across numerous jurisdictions. It particularly focuses on recently enacted laws, initiatives or rulings in various countries that touch on the insolvency of corporate groups and the duties directors and officers owe to creditors and other entities in the zone of insolvency. General Editor: J William Boone JAMES-BATES-BRANNAN-GROOVER-LLP A GLOBAL GUIDE FROM PRACTICAL LAW INTERNATIONAL INSOLVENCY Group insolvency and directors duties Preface J William Boone JAMES-BATES-BRANNAN- GROOVER-LLP Foreword Christopher J Redmond HUSCH BLACKWELL LLP Argentina Martín Campbell & Fernando Daniel Hernández MARVAL, O FARRELL & MAIRAL Australia Karen O Flynn CLAYTON UTZ Bahamas Brian M Moree, QC & M Margaret Gonsalves-Sabola MCKINNEY, BANCROFT & HUGHES Belgium Tom Geudens, Pieter Meeus & Xenia Vandenabeele LYDIAN Brazil Thomas Benes Felsberg & Paulo Fernando Campana Filho FELSBERG ADVOGADOS Canada Justin R Fogarty, Pavle Masic & Nicholas Rossi REGENT LAW PROFESSIONAL CORPORATION Cayman Islands Louis Mooney & Christopher Harlowe MOURANT OZANNES Colombia Daniel Posse, Juan Pablo Bonilla & María Carolina Sarmiento POSSE HERRERA RUIZ Finland Pekka Jaatinen & Elina Pesonen CASTRÉN & SNELLMAN ATTORNEYS LTD France Joanna Gumpelson DE PARDIEU BROCAS MAFFEI A.A.R.P.I. Germany Dr Christoph Schotte & Björn Grotebrune NOERR LLP Greece Stathis Potamitis, Eleana Nounou & Alexandros Rokas POTAMITISVEKRIS Hong Kong John Robert Lees JLA ASIA LIMITED India Sakate Khaitan, Satyendra Shrivastava & Jyoti Krishnan KHAITAN LEGAL ASSOCIATES Indonesia Theodoor Bakker, Herry N Kurniawan & Kevin O Sidharta ALI BUDIARDJO, NUGROHO, REKSODIPUTRO Israel Avraham Well, Meirav Bar-Zik & Meiran Sandelson FISCHER BEHAR CHEN WELL ORION & CO. Italy Lucio Ghia & Enrica Maria Ghia STUDIO LEGALE GHIA Japan Michihiro Mori, Toshihide Haruyama & Natsuki Taira NISHIMURA & ASAHI Asia overview Michihiro Mori & Toshihide Haruyama NISHIMURA & ASAHI Malaysia Rabindra S Nathan MESSRS SHEARN DELAMORE & CO The Netherlands Gerhard Gispen & Barbara van Gangelen SIMMONS & SIMMONS LLP Poland Dr Jacek Bąk & Dr Sławomir Morawski NOERR Russia Stefan Weber & Evgeny Lisin NOERR Singapore Patrick Ang & Kwan Kiat Sim RAJAH & TANN SINGAPORE LLP Spain Miguel Torres & Ferran Zaragoza TORRES, MARTÍN & ZARAGOZA ABOGADOS Switzerland Ueli Huber HOMBURGER AG United Kingdom Jatinder Bains, Paul Keddie & Simon Beale MACFARLANES United States J William Boone & Doroteya N Wozniak JAMES-BATES-BRANNAN- GROOVER-LLP General Editor: J William Boone JAMES-BATES-BRANNAN-GROOVER-LLP

2 International Insolvency Group insolvency and directors duties Fourth Edition General Editor: J. William Boone James-Bates-Brannan-Groover-LLP

3 General Editor: J William Boone James-Bates-Brannan-Groover-LLP Commissioning Editor Emily Kyriacou emily.kyriacou@thomsonreuters.com Commercial Director Katie Burrington katie.burrington@thomsonreuters.com Publishing Editor Dawn McGovern dawn.mcgovern@thomsonreuters.com Editor Katie Hillman katie.hillman@thomsonreuters.com Editorial Publishing Co-ordinator Nicola Pender nicola.pender@thomsonreuters.com Published in May 2015 by Thomson Reuters (Professional) UK Limited Friars House, 160 Blackfriars Road, London, SE1 8EZ (Registered in England & Wales, Company No Registered Office and address for service: 2nd floor, Aldgate House, 33 Aldgate High Street, London EC3N 1DL) A CIP catalogue record for this book is available from the British Library. ISBN: Thomson Reuters and the Thomson Reuters logo are trade marks of Thomson Reuters. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen s Printer for Scotland. While all reasonable care has been taken to ensure the accuracy of the publication, the publishers cannot accept responsibility for any errors or omissions. This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material including permission to reproduce extracts in other published works shall be made to the publishers. Full acknowledgement of author, publisher and source must be given Thomson Reuters (Professional) UK Limited

4 International Insolvency Contents Preface J William Boone James-Bates-Brannan-Groover-LLP Foreword Christopher J Redmond Husch Blackwell LLP Argentina Marval, O Farrell & Mairal Martín Campbell & Fernando Daniel Hernández 1 Australia Clayton Utz Karen O Flynn 23 Bahamas McKinney, Bancroft & Hughes Brian M Moree, QC & 47 M Margaret Gonsalves-Sabola Belgium Lydian Tom Geudens, Pieter Meeus & Xenia Vandenabeele 67 Brazil Felsberg Advogados Thomas Benes Felsberg & 91 Paulo Fernando Campana Filho Canada Regent Law Professional Corporation Justin R Fogarty 111 Pavle Masic & Nicholas Rossi Cayman Islands Mourant Ozannes Louis Mooney & Christopher Harlowe 131 Colombia Posse Herrera Ruiz Daniel Posse, Juan Pablo Bonilla 153 & María Carolina Sarmiento Finland Castrén & Snellman Attorneys Ltd Pekka Jaatinen & Elina Pesonen 169 France De Pardieu Brocas Maffei A.A.R.P.I. Joanna Gumpelson 191 Germany Noerr LLP Dr Christoph Schotte & Björn Grotebrune 215 Greece PotamitisVekris Stathis Potamitis, Eleana Nounou & Alexandros Rokas 237 Hong Kong JLA Asia Limited John Robert Lees 257 India Khaitan Legal Associates Sakate Khaitan, Satyendra Shrivastava 277 & Jyoti Krishnan Indonesia Ali Budiardjo, Nugroho, Reksodiputro Theodoor Bakker, 301 Herry N Kurniawan & Kevin O Sidharta Israel Fischer Behar Chen Well Orion & Co. Avraham Well, Meirav Bar-Zik 321 & Meiran Sandelson Italy Studio Legale Ghia Lucio Ghia & Enrica Maria Ghia 343 Japan Nishimura & Asahi Michihiro Mori, Toshihide Haruyama & Natsuki Taira 363 Asia overview Nishimura & Asahi Michihiro Mori & Toshihide Haruyama 387 Malaysia Messrs Shearn Delamore & Co Rabindra S Nathan 391 The Netherlands Simmons & Simmons LLP Gerhard Gispen 409 & Barbara van Gangelen Poland Noerr Dr Jacek Bąk & Dr Sławomir Morawski 427 Russia Noerr Stefan Weber & Evgeny Lisin 447 iii vii EUROPEAN LAWYER REFERENCE SERIES iii

5 International Insolvency Singapore Rajah & Tann Singapore LLP Patrick Ang & Kwan Kiat Sim 463 Spain Torres, Martín & Zaragoza Abogados Miguel Torres & Ferran Zaragoza 481 Switzerland Homburger AG Ueli Huber 501 United Kingdom Macfarlanes Jatinder Bains, Paul Keddie & Simon Beale 519 United States James-Bates-Brannan-Groover-LLP J William Boone 535 & Doroteya N Wozniak Contacts 563 iv EUROPEAN LAWYER REFERENCE SERIES

6 Switzerland Homburger AG Ueli Huber GENERAL OVERVIEW OF INSOLVENCY PROCEEDINGS 1. What are the available out-of-court and court-sanctioned insolvency proceedings? Swiss law does not know out-of-court insolvency proceedings. For persons and entities subject to bankruptcy the law does not regulate out-of-court debt restructurings. A company in distress can file for bankruptcy itself or can find itself subject to bankruptcy proceedings at the request of a creditor. If there is a possibility for a restructuring, a distressed company can, together with filing for bankruptcy, apply for a corporate moratorium (Konkursaufschub, ajournement de la faillite) under the Swiss Code of Obligations (CO). This application can also be filed by a creditor. In order to obtain a moratorium, the applicant must show on a prima facie basis that a restructuring is possible and that the company s distress may be removed on a permanent basis. In most cases an administrator is appointed to oversee the restructuring and to ensure that the creditors interests are protected. As an alternative to filing for bankruptcy proceedings, a company can also apply for an insolvency moratorium (Nachlassstundung, sursis concordataire) under the Swiss Federal Act on Debt Collection and Bankruptcy (FBA). While bankruptcy will result in all assets being liquidated for the benefit of all creditors, the purpose of the insolvency moratorium is to reach a restructuring or a composition agreement in an attempt to ensure the survival of the company. Compared to the corporate moratorium mentioned above, the insolvency moratorium is a more formal proceeding. 2. What are the proceedings for a liquidation of assets and those allowing for a restructuring of the debtor s operations and debts? Liquidation of assets Upon adjudication of bankruptcy all feasible assets of the debtor form one sole estate, designated for the satisfaction of the creditors. The bankrupt company is controlled by the public bankruptcy official who can, upon a motion of the creditors meeting, be replaced by a private trustee. In most cases, the bankruptcy official will close down the business of the bankrupt immediately after adjudication of bankruptcy. However, subject to the approval of the creditors committee, he may decide to continue the business of the bankrupt in order to allow for a sale as a going concern. EUROPEAN LAWYER REFERENCE SERIES 501

7 Restructuring Corporate moratorium. A distressed company can, together with the filing for bankruptcy, apply for a corporate moratorium (Konkursaufschub, ajournement de la faillite) under the Swiss Code of Obligations (CO). The application can also be filed by a creditor. In order to obtain a corporate moratorium, the applicant must show on a prima facie basis that a restructuring is possible and that company s distress may be removed on a permanent basis. In most cases an administrator is appointed to oversee the restructuring and to ensure that the creditors interests are protected. Insolvency moratorium. As an alternative to bankruptcy, a company can apply for an insolvency moratorium (Nachlassstundung, sursis concordataire) under the Swiss Federal Act on Debt Collection and Bankruptcy (FBA). The provisions on the insolvency moratorium have been substantially revised, and these revisions have been in force since 1 January The purpose of the insolvency moratorium is to reach a restructuring or a composition agreement. A composition agreement can take the form of a stay or a dividend payment to the creditors, in which case the distressed company will survive. Additionally, similar to bankruptcy, a composition agreement can lead to the liquidation of the company s assets and the distribution of the proceeds to the creditors in satisfaction of their claims. Compared to the corporate moratorium, the insolvency moratorium is a more formal proceeding. The successful applicant will be given an administrator who oversees the business and who will, together with the company, prepare a composition agreement (unless restructuring can already be achieved during the moratorium). The composition agreement must be submitted to the creditors and the court for approval. 3. What are the general requirements for commencing insolvency proceedings? Presently, the test which will determine whether a Swiss company must file for insolvency proceedings is entirely balance-sheet driven. Swiss companies must file for bankruptcy (Konkurs, faillite) if, based on both a going concern and a liquidation value balance sheet, their liabilities exceed their assets (that is, if they are over-indebted). Unlike over-indebted companies, companies with liquidity problems are not under an obligation to file for bankruptcy. However, the shareholders of an insolvent company may decide to liquidate by way of filing for bankruptcy. Bankruptcy proceedings can also be initiated on the demand of a creditor who is pursuing a claim in debt enforcement proceedings. Bankruptcy proceedings will be adjudicated ex officio if an insolvency moratorium has been revoked or a motion for composition has been rejected. Further, a creditor can file an insolvent company into bankruptcy using an abridged procedure if the company has generally stopped to pay its debts when they fall due. The general requirement for filing for a corporate moratorium (which can apply together with a bankruptcy filing) is that the filing entity has a possibility of being restructured. 502 EUROPEAN LAWYER REFERENCE SERIES

8 Neither over-indebtedness nor a shareholders resolution are required for a Swiss company to apply for an insolvency moratorium. However, the distressed company must demonstrate that a composition agreement is in the best interest of its creditors and that it has, or generates, sufficient revenues to continue its business during the moratorium. Further, if there is to be a liquidation-type composition agreement, the company must show that the composition agreement will yield a better return for the creditors than a bankruptcy (however, this is normally the case, as a liquidationtype composition is far less formal than straight bankruptcy, granting the administrator more flexibility in dealing with the assets than a bankruptcy trustee would have). 4. Are there any restrictions on who, or what type of entity, can commence insolvency proceedings? In order to file for bankruptcy, the person or entity must be eligible (see Question 3). A legal entity and a non-incorporated business can apply to commence insolvency proceedings. There are no eligibility criteria for the insolvency moratorium, and so any debtor can apply for this. However, the insolvency moratorium is not normally used outside a business context. Only a corporation (that is, a stock corporation or a limited liability corporation) can apply for a corporate moratorium. DOMESTIC FAMILY OF COMPANIES 5. Are joint proceedings available in insolvency or bankruptcy proceedings that are commenced for the family of companies? Procedure Swiss law has neither a group corporate law nor a group insolvency law and therefore does not provide for joint proceedings in the case of the insolvency of a family of companies. Moreover, the insolvency of one member of the family of companies will, from a purely legal point of view, not affect the other group companies. This also holds true for the insolvency of the parent company. However, in practice, the insolvency of one group entity will often have a substantial impact on the other members of the group. As a result of an insolvency of a group entity, creditors may, for example, call on guarantees from the other member(s) of that group or cross-default clauses. As Switzerland has no group insolvency rules, each Swiss entity of a family of companies must file for insolvency with the competent court. Depending on the nature of the financial difficulties and the prospects of a restructuring, different rules apply. Location As mentioned above (see above, Procedure), there are no joint proceedings for families of companies in Switzerland. The Swiss courts at the place where the insolvent company is registered are competent to hear petitions related to insolvency issues. EUROPEAN LAWYER REFERENCE SERIES 503

9 6. Must all members of the corporate family proceed under the same type of bankruptcy or insolvency proceeding? There are no joint proceedings for families of companies in Switzerland (see Question 5). As a result, the opening of insolvency proceedings in relation to one company does not necessarily lead to the opening of insolvency proceedings over other companies of the same corporate family. The members of a corporate family do not have to proceed under the same type of insolvency proceeding. 7. Can a single administrator/trustee/receiver administer the assets and the liabilities of the entire corporate family? The creditors or courts can appoint the same administrator for more than one company of a family of companies. However, as there are likely to be multiple relationships between the entities of a corporate family, and as an administrator has a duty to safeguard the interests of the creditors of each individual entity, a single administrator is likely to face a conflict of interest. There is therefore a risk that a single administrator will not be able to exercise his function efficiently. A possible solution to this problem is the nomination of a second administrator for each corporate entity. The main task of the second administrator would be to deal with intercompany relations. 8. Is a court hearing required to determine whether administration by a single party is appropriate and, if so, must notice be given to creditors? The answer to this question depends on the type of proceeding. In case of a bankruptcy, during the first stage of proceedings the local bankruptcy official will take over the business of the bankrupt. In the first creditors meeting, the creditors can elect for either: Another administrator to replace the public bankruptcy official (extraordinary administration). A creditors committee, which will oversee the dealings of the administrator. At the creditors meeting each creditor, whether secured or not, has one vote. Both the options of an extraordinary administration and a creditors committee are normally chosen in large or otherwise complex insolvencies. In the case of a corporate moratorium, the appointment of an administrator is at the court s discretion. The creditors will only be heard if they filed either: An application for bankruptcy. An application for a corporate moratorium. However, since the revised rules on the insolvency moratorium entered into force, the insolvency moratorium now commences with a compulsory provisional phase of up to four months. During this phase the administrator must analyse whether or not it is possible for the company to enter into a restructuring. The court will only refuse an application for restructuring if there is obviously no possibility of restructuring the company. There will therefore normally be no hearing on the application. The court can, 504 EUROPEAN LAWYER REFERENCE SERIES

10 at its discretion, decide to hold a hearing and to hear the applicant (the applicant will be either the company or a creditor) and/or the creditors. If the administrator s analysis shows that there is a chance for restructuring or a composition agreement, the provisional moratorium will be converted into a definitive moratorium by the court. In this instance, there must be a hearing and the applicant must be heard at that hearing. However, it is left to the discretion of the court whether it will admit other parties, such as nonapplicant creditors. If restructuring is not achieved during the moratorium itself and composition proceedings follow the insolvency moratorium, the creditors can decide to liquidate the company if a stay or a dividend payment are not an available option. In this case, the creditors meeting elects a liquidator and the creditors committee. Each creditor, whether secured or not, has one vote in these elections. It is disputed in academic writing whether the creditors who did not file their claims in due time should have a right to vote in the creditors meeting. 9. Can other professionals work for the entire corporate family? To work for more than one company of a corporate family does not per se constitute a conflict of interest. However, similar to the situation in the case of administrators (see Question 7), professionals cannot represent different companies in matters being discussed amongst those different companies, or in which their interests are otherwise not aligned. 10. If the law does not permit a single administrator/trustee/receiver, are there provisions allowing different administrators to co-ordinate with each other so that values of assets can be maximised? Not applicable. 11. Does your jurisdiction encourage or discourage overlapping boards or management teams for separate members of a corporate family? Swiss law does not have any specific provisions on overlapping boards or management teams for separate members of a corporate family, and overlapping boards are quite common. However, each board member or manager of a company in a family of companies must safeguard the interests of the company that they manage. If the board member/manager fails to do that, they can be held personally liable for the damages suffered by the company, its shareholders and creditors. Additionally, the parent company can be held liable if its director, who acts as a manager or a board member of a subsidiary, causes damage to the subsidiary or the subsidiary s creditors. In insolvency situations, the interests of individual companies in a family of companies may not be aligned with those of other family members or the group as a whole. As a result, directors serving on the boards of more than one group entity will have a conflict of interest. Typically, issues arise with regard to intra-group loans and security provided to the other group members (see Question 16). In addition, the directors of overlapping boards will still EUROPEAN LAWYER REFERENCE SERIES 505

11 have a legal obligation to file an insolvent group entity into bankruptcy if the prerequisites are met, irrespective of any divergent group interests (see Question 13). If a director fails to do so, they risk the administrator or the creditors holding them liable for any damage that occurs as a result of their failure to file. 12. How are directors of a parent company treated if they are not directors of the subsidiary but manage the affairs of the subsidiary? If either another family member company, or one of its directors, takes decisions on behalf of a subsidiary or acts on its behalf, that director or family member company will be deemed to be a de facto director. As a result, a Swiss company can be held liable for the acts and omissions of its directors, even where they act outside of their official remit. A family member company risks being qualified as a de facto director if it exercises control over its subsidiaries and takes decisions on the group s strategy, finances and organisation and implements these decisions at subsidiary level. If a family member company or a director of another group entity is qualified as a de facto director, they can be held liable as if they were appointed as directors of the company. Further, if an individual is deemed to be a de facto director and if he or she serves as a director of another entity of the family of companies, that other entity can also be held liable for the acts and omissions of its director. 13. To whom do directors or officers owe duties while the company is solvent? What is the nature of the duties? As with insolvency proceedings, Swiss corporate law does not contain special rules for families of companies. The focus is on the individual group entity and not the group of companies. In general terms, the directors of a Swiss company are (ultimately) responsible for: Financial planning. Financial control. Accounting. This position is the same for the board of directors of a corporate entity within a group of companies. Officers and directors have a general duty to protect the interest of the company, or the group, while the company is solvent. 14. Do the duties or responsibilities of the officers or directors of a family of companies change when the companies become insolvent? In insolvency, the duties and responsibilities of officers and directors are no longer to protect the interest of the company or the group, but to safeguard the interests of the creditors of the respective group entity. Swiss law further explicitly deals with the directors duties in cases where there is a loss of capital, and in cases of over-indebtedness. A company faces a loss of capital if half of its share capital and its statutory reserves are no longer covered by assets. Where a loss of capital is established on the basis of audited accounts, the directors must immediately 506 EUROPEAN LAWYER REFERENCE SERIES

12 call a shareholders meeting and propose restructuring measures in order to restructure the balance sheet. A Swiss company is deemed over-indebted if its liabilities exceed its assets. If the board of directors has substantiated concerns that the company may be over-indebted, it must establish statutory interim accounts on a going concern and liquidation basis. Should the interim accounts establish the overindebtedness, the board of directors must notify the competent bankruptcy judge. There are two exceptions to this: No notification is required if creditors subordinate their claims to the claims of all other creditors in the amount of the over-indebtedness. The board of directors can abstain from notifying the bankruptcy judge for a short period of time if it has sufficient grounds to believe that the company can restructure within a short period of time. However, a mere hope or a vague expectation of a restructuring does not justify the postponement of the filing for bankruptcy. The insolvency of one or several member entities will also influence intragroup relationships. For example, the managers of the solvent entities will have to review the existing commitments vis-à-vis the distressed entities in order to preserve the interests of the (still) solvent entities and its creditors (see Question 16). 15. How are competing fiduciary duties addressed where officers and directors of various company family members overlap and conflicts of interest between the family members exist? If a conflict arises, the relevant officer or director will have to abstain (see Question 11). 16. Are the rules regarding members of the corporate family transferring assets to one another different when the members are insolvent? The insolvent group entities must protect the interests of their respective creditors. Transactions with other group entities must therefore be at arm s length. Depending on the nature of the transaction and the insolvency proceeding applicable to it, the insolvent entity must in addition seek the approval of the administrator, the competent court or the creditors committee. For example, if the insolvent entity has been granted an insolvency moratorium, any sale of noncurrent assets (Anlagevermögen, actif immobilisé) will require the approval of the administrator and the competent court or, following the approval of the composition agreement, the creditors committee. Moreover, the insolvent entity can no longer pledge its assets, grant guarantees or enter into transactions which are not at arm s length without the approval of the administrator. The administrator s approval is not only important for the insolvent entity and its directors, but also for the counterparty to any transaction. This is because, following the adjudication of bankruptcy or the granting of a moratorium, only debt which accrues with the approval of the administrators will be treated as debt of the estate. Any other debt will be regarded as pre-moratorium debt, which in liquidation will EUROPEAN LAWYER REFERENCE SERIES 507

13 only entitle the creditor to a dividend. If a group entity enters into a contract with an insolvent member of the group, it must ensure that the administrator of the insolvent entity approves the transaction. Additionally, a solvent Swiss family member company must consider that loans granted to parent or sister companies may be qualified as either a dividend or, where the borrower has no distributable reserves, an illicit repayment of capital. There are a variety of views on the question of when a loan to a parent or sister company constitutes a repayment of capital. The strictest view argues that any loan to a parent or sister company which is not covered by distributable reserves is a repayment of capital and should therefore not be permitted. A less strict (and more generally applied) view is that a loan to a parent or sister company only constitutes a repayment of capital if the borrower never really intended, or was never in a position, to repay it or the loan is not at arm s length. We are not aware of any reported case which clarifies the issue. However, where a loan is granted to an insolvent parent or sister company there is a considerable risk that the loan will qualify as a dividend or illicit repayment of capital. Loans by parent companies to their subsidiaries are less problematic. A Swiss parent company can support its distressed subsidiary, if the transaction is in line with its business purpose. Additionally, the support granted must be proportionate to the financial means of the borrower and must be approved by the competent corporate body of the borrower. 17. How are claims of one member of a corporate family against other members of the corporate family treated? Such claims are treated as any other claims that an insolvent company is faced with (that is, they are neither invalid nor unenforceable). Where subsidiaries have been thinly financed, there have been a few lower court cases that have either disallowed or subordinated claims of parent companies against subsidiaries arising out of intercompany loans granted by parent companies. However, Swiss law (except for tax purposes) does not contain provisions requiring companies to maintain a specific debt/equity ratio. The cases have therefore been criticised and the Federal Supreme Court has held that Swiss corporate and insolvency law does not recognise the concept of thin financing. While it appears that a full disallowance is an improper measure, it is at this stage not quite clear whether it would still be possible to subordinate excessive intercompany loans. Given that Swiss law does not require a company to maintain a specific debt/equity ratio, this should, in general, not be the case. However, if a parent company, at a stage where the subsidiary is over-indebted and therefore under a duty to file for bankruptcy, chooses to finance a subsidiary with shareholder loans in order to avoid that filing, the parent company is acting in abuse of rights. If the subsidiary then later has to file for bankruptcy, these additional loans are likely to be subordinated. 508 EUROPEAN LAWYER REFERENCE SERIES

14 Substantive consolidation 18. Is pooling of assets and liabilities of some or all members of the corporate family allowed, so that a creditor of one member becomes, in essence, a creditor of all members? There is no pooling of assets and liabilities of members of a corporate family in Swiss insolvency proceedings. Swiss law does not provide for joint insolvency proceedings for members of a corporate family (see Question 5). In the case of an insolvency of a corporate family, separate insolvency proceedings will be initiated for each group member. Whilst the administrator(s) of the individual companies can co-ordinate procedural steps, they are mandated to safeguard the interests of the creditors of the individual entity and not of the group as a whole. As a result, they will have to enforce intra-group claims (including claims for directors liability and fraudulent conveyance). 19. What proceedings are required for the court to order the pooling of assets and liabilities? Not applicable (see Question 18). 20. Is the partial pooling of assets and liabilities allowed? What conditions apply? Not applicable (see Question 18). 21. If the pooling of assets and liabilities is required, are there any protections for certain types of creditors? Not applicable (see Question 18). Secured creditors 22. How are secured creditors treated in relation to a family of companies? As Switzerland does not have special group insolvency rules, a creditor can file its claim (whether due or not) under the insolvency proceedings of each Swiss debtor. The creditor will not receive more than the nominal amount of its claims (plus any interest accrued on it prior to the insolvency event). Any surplus will be distributed among the estates in accordance with their respective right of recourse. Claims derived from guarantees are admitted in bankruptcy proceedings even if they have not matured at the time the bankruptcy is adjudicated. The estate will subrogate into the rights of the creditor vis-à-vis the principal debtor and any co-debtors. In addition, if the creditor has already been partially satisfied by a co-debtor of the bankrupt, he may nevertheless file the entire claim. Again, the creditor may not recover more than the nominal amount of the claim. In addition to the creditor, the co-debtor can file a claim equivalent to the amount for which he has a right of recourse against the bankrupt. With respect to security granted by Swiss members of the corporate family, the following is worthy of note. Payments under a guarantee for debt of a parent or sister company are deemed to be dividend payments (see Question EUROPEAN LAWYER REFERENCE SERIES 509

15 16). Payments under a guarantee in favour of a parent or sister company are therefore only possible if a company is able to pay dividends. Additionally, the formal requirements for a dividend payment (such as approval by the shareholders meeting) must also be satisfied. A company can pay dividends provided that such payments do not exceed its distributable reserves. The statutory reserves, the reserves for own shares and the reserves for write-ups are not distributable. Further, a portion of the earnings which must be allocated to the statutory reserves cannot be distributed. Additionally, views differ if and under what circumstances any capital surplus can be distributed. The strictest view is that a capital surplus cannot be distributed at all. The less strict view is that it can be distributed in the fiscal year following its creation, provided the shareholders meeting formally allocates the capital surplus to the free reserves. Irrespective of the payer s financial situation (that is, not only in an insolvency scenario), payments which are made in excess of the distributable reserves are deemed to be an illicit repayment of capital. The beneficiary of such a payment will be deemed illicitly enriched and will have to refund any benefit received. An insolvent Swiss company will most likely not have any distributable reserves. Consequently, the security interests of a group member against an insolvent Swiss guarantor will be of little value. The above also applies to secured claims against a Swiss debtor. However, in the case of the bankruptcy of the Swiss debtor, the secured creditor must hand over the security to the administrator, who will realise the security on the creditor s behalf. Unless the claims are secured by a pledge over real estate, they will become immediately due upon the adjudication of bankruptcy and will cease to carry interest as of the adjudication of bankruptcy. In composition proceedings, the creditor does not have to hand over its security to the administrator. However, during the insolvency moratorium the creditor will not be able to enforce its security in debt enforcement proceedings, and arguably does not have a right to proceed to a private enforcement either. Additionally, a composition agreement which provides for a liquidation of the debtor s assets can contain a further moratorium on any enforcement of security. Unlike the position with bankruptcy, secured claims will continue to carry interest provided the security covers both the principal amount and the interest accrued. INTERNATIONAL FAMILY OF COMPANIES 23. What extra considerations are necessary if one or more members of the corporate family is incorporated under or governed by the laws of another jurisdiction? The rules mentioned above only apply to Swiss companies. As Switzerland does not have group insolvency rules, the position with regard to Swiss companies does not change if one or several other group members are incorporated under the laws of another jurisdiction. 510 EUROPEAN LAWYER REFERENCE SERIES

16 24. If insolvency/restructuring proceedings are instituted for corporate family members in different countries, do any international treaties or EU legislation apply to govern this situation? There are no applicable international treaties. EU legislation does not apply in Switzerland. 25. Do domestic courts typically attempt to exercise jurisdiction over all the assets of the company filing domestically (regardless of where the assets are located) or do they limit their jurisdiction to domestically located assets? Swiss insolvency law theoretically claims all the assets of the estate, wherever they are located, to satisfy the bankrupt s obligations towards its creditors. However, this claim will be limited by the competing claims of the jurisdiction where the assets are situated. Whether the Swiss estate will be able to reach assets located abroad therefore depends on local law (except for a small number of countries with which Switzerland has entered into treaties). 26. Do the courts enforce court orders from foreign jurisdictions that attempt to exercise jurisdiction over assets located in your jurisdiction but owned by the company that is subject to the foreign insolvency proceedings? The body of law governing the recognition and enforcement of foreign bankruptcies is incorporated into Switzerland s Federal Act on Private International Law (PILA), embodying the vast majority of Switzerland s conflict of law rules. In addition, there are specific provisions governing the bankruptcy of Swiss branches of foreign corporations. Prerequisites to recognition The PILA provides that a foreign insolvency-related decision must meet the following three prerequisites in order to be recognised in Switzerland: The decision adjudicating a person or corporation in bankruptcy (Bankruptcy Adjudication) must have been rendered in the country of that person s residence or that corporation s principal office. A corporation s principal office is determined by its articles of incorporation. Only if the articles are silent will the place where the corporation is actually governed from be deemed to be the principal office. A decision cannot be recognised if it is incompatible with Swiss public policy. The PILA gives the following specific reasons for non-recognition: the defendant was not properly served with process; the judgment was rendered in violation of essential principals of Swiss procedural law, which is specifically the case if the defendant was not granted the right to be heard in court; the same matter is already subject to legal proceedings between the same parties in Switzerland or, provided the decision which is awaiting adjudication would be recognisable in Switzerland once it is given, in a third country (this provision hardly bears any relevance in the case of bankruptcy adjudications). EUROPEAN LAWYER REFERENCE SERIES 511

17 A bankruptcy adjudication stemming from a country which would not recognise a Swiss bankruptcy adjudication, or would not recognise foreign bankruptcy adjudications in general, cannot be recognised in Switzerland. Although Switzerland, when enacting the PILA, has abandoned the prerequisite of reciprocity for judgments in civil matters in general, the prerequisite stays for bankruptcy adjudications. Procedure for recognition In order for a foreign bankruptcy adjudication to be recognised in Switzerland, there must be assets located in Switzerland. The court of the place in Switzerland where the assets of the bankrupt company are situated is competent to hear a petition for recognition. Claims of the bankrupt are also assets. They are deemed to be located at the principal office of its debtor. Assets may also be located in several jurisdictions. In these cases, the court where the first application for recognition has been filed will be exclusively competent. An application for recognition of foreign bankruptcy adjudications can be filed by both the representative of the foreign bankruptcy estate and any bankruptcy creditor. Any creditor, as well as the bankrupt, can oppose the application. Once recognition has been applied for, the judge can order conservatory measures. Effects of recognition: the mini-bankruptcy If the Swiss decision on recognition of a bankruptcy adjudication has become final, the assets of the foreign bankrupt are subject to the same restrictions as in a Swiss bankruptcy. This generally means that all assets situated in Switzerland will no longer be subject to dispositions of the debtor and a bankruptcy administration must take over. The main task of the bankruptcy administration, aside from locating and listing these assets, will be to establish a claims schedule. Attachment taken against such assets will lapse. The claims schedule will result in a limited bankruptcy proceeding in Switzerland, called mini-bankruptcy, to which only a limited range of creditors are admitted, namely: All creditors secured by assets located in Switzerland. Unsecured, but privileged, creditors with residence or a principal office in Switzerland. These creditors will be satisfied out of the bankrupt s assets seized in the mini-bankruptcy. Following this, the foreign bankruptcy administration must submit its own claims schedule for approval. The court, having recognised the foreign bankruptcy adjudication, will review the claims schedule and establish whether the claims of creditors with residence or a principal office in Switzerland have been adequately taken into account. These creditors have a right to be heard in the approval procedure. If the foreign schedule of claims is approved, the excess of funds (after satisfaction of the above-mentioned creditors) is transferred to the foreign estate or foreign bankruptcy creditors entitled to that excess. 512 EUROPEAN LAWYER REFERENCE SERIES

18 If the foreign claims schedule is not recognised, the excess will be distributed to unsecured and non-privileged creditors with residence or a principal office in Switzerland in accordance with the Bankruptcy Act. The PILA further provides that, if assets which have been subject to a fraudulent transfer are situated within Switzerland, the transfer can be challenged within the mini-bankruptcy. The lawsuit is subject to the respective provisions of the Bankruptcy Act. The lawsuit can be brought either by the foreign bankruptcy administration or a creditor, if the foreign bankruptcy law so permits. Absent a choice of foreign jurisdiction, the suit must be filed at the defendant s Swiss residence or principal office. In the absence of this, the court at the place of the Swiss mini-bankruptcy is competent. Recognition of foreign composition and comparable proceedings The PILA provides that decrees issued on the basis of a composition agreement or similar proceeding by a foreign authority will be recognised in Switzerland. The provision indicates that only agreements between a debtor and its creditors can be recognised if there has been an authoritative approval mechanism. Bi- or multi-partite agreements between a debtor and one or more of his creditors without this approval therefore cannot be subject to recognition. Necessity to apply for recognition In order to obtain access to the assets of the foreign estate located in Switzerland, and to safeguard rights of the estate generally, there is no way for the foreign trustee to avoid applying for recognition of the foreign insolvency proceeding in Switzerland. In recent years there have been a number of judgments rendered by the Federal Supreme Court establishing the do s and don ts for foreign administrators acting in Switzerland. The essence of these judgments is clear: the only power a foreign administrator has as regards acting in Switzerland is to apply for recognition. Holders of assets in Switzerland will not be permitted to turn over those assets to the foreign trustee directly. The foreign trustee will not have the standing to protect the rights of the estate by filing a lawsuit in Switzerland or even by filing a claim in the insolvency of a Swiss debtor of the estate. This obviously causes an issue in cases where recognition has to be denied. The main reason for such denial is the lack of reciprocity (see above, Prerequisites to recognition). In its latest decision, the Swiss Federal Court has acknowledged that problem, but has stated that, given the clear statutory provision, it could not deviate from the prerequisite of reciprocity. In addition, a foreign trustee acting in Switzerland may be violating a provision of the Swiss criminal code which prohibits foreign officials from acting on Swiss soil. If there is no need for a full recognition (because, for example, the foreign estate does not have assets in Switzerland, but wishes to communicate with creditors of the estate), that hurdle can be overcome by the foreign trustee applying to the Swiss Federal Office of Justice to be granted a permit to act accordingly. If a permit is granted, no criminal sanction be applicable. EUROPEAN LAWYER REFERENCE SERIES 513

19 Bankruptcy of branch offices If a foreign corporation that maintains a branch in Switzerland becomes bankrupt, it is possible that two separate proceedings will have to take place: one for the branch and its assets, and another one for assets directly belonging to the bankrupt foreign company. Financial institutions It is noteworthy that with respect to the recognition of foreign insolvency adjudications concerning financial institutions, the applicable rules in many respects deviate from those for other companies as described in this chapter. 27. Under what conditions, if any, can the courts communicate and co-ordinate with courts of a foreign jurisdiction in an effort to coordinate the administration of assets of family members? There are no formal rules on this subject and courts will handle this informally on a case-by-case basis. RESPONSIBILITIES OF OFFICERS AND DIRECTORS 28. What is the specific nature of the duties and responsibilities of officers and directors of a company? How do those duties and responsibilities change when the company becomes financially distressed? The term fiduciary duties under Swiss law may have a connotation differing from that under Anglo-Saxon doctrine. In particular, a director is not regarded as a trustee towards the stakeholders. The directors main fiduciary duty is towards the company. However, directors must weigh company interests against the interests of other stakeholders, especially shareholders. As the board has a duty to secure the continued wellbeing of a company, it must favour long-term perspectives over short-term interests (such as a high yield at the cost of long-term prosperity), which in the end will also protect the interests of the company s shareholders in a stable investment. There are only very limited duties towards third parties, including creditors. The main duty towards creditors is to keep the company afloat, particularly to maintain assets covering at least the share capital and restricted reserves. 29. What specific types of conduct are in breach of the duties and responsibilities of officers and directors? The following types of conduct are in breach of the officers and directors duties: Failure to take reasonable steps to minimise losses to creditors. Misappropriation of corporate assets. Undervaluation of corporate assets in a preference or other transaction to the detriment of creditors. There are a number of transactions that will constitute a fraudulent transfer. Undervaluation of assets is one explicitly mentioned. Depending on the circumstances, the hardening period is one year or five years (calculated backwards from the opening of insolvency proceedings). 514 EUROPEAN LAWYER REFERENCE SERIES

20 Continuing to trade when there is little prospect of being able to pay when debts fall due. In addition to the above, if a company is in financial distress, it must treat creditors of equal standing equally. It can no longer fully pay certain unsecured creditors if it has reason to believe that in the near future it will no longer be able to continue to fully satisfy all unsecured creditors. There is not generally any breach of duty where there is a failure to inform creditors of insolvency. However, depending on the circumstances, there may be a duty under good faith rules requiring such disclosure. In any case, the failure to file for insolvency proceedings if the company is over-indebted will constitute such a violation. 30. What duties do officers and directors have to key creditor groups before the company becomes financially distressed? See Question How do officers and directors duties change after the company becomes financially distressed or insolvent? Financially distressed See Question 14. Insolvent See Question What civil and criminal liability exists for the officers and directors if they breach their duties and responsibilities? From a civil claim viewpoint, aside from mismanagement generally, directors and officers can become liable if they permit the company to enter into a voidable transaction prior to insolvency. From a criminal claim viewpoint, there are a variety of provisions that can apply (though these are not only specific to insolvency). Insolvency-specific criminal liability includes: Mismanagement. Omitting to properly keep the books of the company. Diminishing the company s assets. Permitting voidable transactions. Once an insolvency proceeding has been commenced, depending on its type, the power of the directors is either removed or substantially reduced and falls under supervision of an administrator. It is unlikely that civil or criminal liability will be incurred in that phase. Officers and directors can be subject to imprisonment, criminal fines and restitution for criminal liability, subject to the facts of the case. 33. Are officers and directors exposed to civil claims by creditors, shareholders, government authorities or employees? Before insolvency Sanctions against the violation of fiduciary duties will normally only become active once the company is involved in an insolvency proceeding. Recourse EUROPEAN LAWYER REFERENCE SERIES 515