THE WORLD BANK GLOBAL JUDGES FORUM COMMERCIAL ENFORCEMENT AND INSOLVENCY SYSTEMS COUNTRY: FINLAND. By Pauliine Koskelo TABLE OF CONTENTS

Transcription

1 THE WORLD BANK GLOBAL JUDGES FORUM COMMERCIAL ENFORCEMENT AND INSOLVENCY SYSTEMS MAY 2003 PEPPERDINE UNIVERSITY SCHOOL OF LAW MALIBU, CALIFORNIA COUNTRY: FINLAND By Pauliine Koskelo TABLE OF CONTENTS PAGE NO 1.0 OVERVIEW OF INSOLVENCY PROCEEDINGS IN FINLAND REORGANIZATION PROCEEDINGS FOR ENTERPRISES 6

2 2 1.0 OVERVIEW OF INSOLVENCY PROCEEDINGS IN FINLAND I BANKRUPTCY PROCEEDINGS Bankruptcy proceedings are governed by the Bankruptcy Code, which governs liquiations proceedings. In addition, there is a separate statute dealing with actions to set aside prebankruptcy transactions. The purpose of Bankruptcy Proceedings is to liquidate the assets of the debtor for the benefit of the creditors. A modernization of the Bankruptcy Code is expected to be enacted in the near future. PETITIONING Bankruptcy proceedings may be initiated either by the debtor or by a creditor. All petitions for bankruptcy proceedings are handled by the district courts. When the debtor files for bankruptcy, the proceedings are opened forthwith, without any examination as to the insolvency of the debtor. Where a petition is filed by a creditor the court shall provide the debtor with an opportunity to be heard. A prerequisite for the opening of bankruptcy proceedings on the basis of a petition from a creditor is that the debtor is insolvent. However, certain specific factual situations - for instance, where the debtor is a merchant, a clear and undisputed claim has not been met within 8 days of the creditor's demand and is still outstanding - constitute proof of insolvency and are as such sufficient as grounds for the opening of proceedings. OPENING OF BANKRUPTCY PROCEEDINGS: LEGAL EFFECTS If the court adjudicates in favour of the petition, the bankruptcy proceedings are opened at the precise time of the decision. Regardless of the petitioner (debtor or creditor) the court, when opening the proceedings, appoints a provisional receiver to administer the debtor's estate. Upon the opening of the bankruptcy proceedings the debtor forfeits control of all assets belonging to the estate. Any transactions entered upon by the debtor or the debtor's agents after the opening of the bankruptcy and relating to these assets are void (with limited exceptions for the benefit of third parties having acquired, in good faith, specific assets, inparticular transferable securities). The opening of the bankruptcy proceedings does not automatically affect the debtor's contractual relationships dating from the period preceding the opening of the proceedings. Specific contracts are governed by special provisions concerning the rights of the estate and the counterparty after the opening of the proceedings. A notice concerning the opening of bankruptcy proceedings is entered, ex officio, in a public, computerized register maintained by the Ministry of Justice and updated on a daily basis (register on bankruptcy and reorganization proceedings).

3 3 CREDITORS' HEARING When opening the bankruptcy proceedings, the court must stipulate a date for the creditors' hearing, to be held normally within one month of the decision to open the proceedings. At the hearing the provisional receiver shall submit an inventory of the debtor's estate to the court, and the debtor is required to attest under oath to its accuracy. If the court judges that the there are sufficient assets in the estate to merit full bankruptcy proceedings, the court appoints one or more administrators (they replace the provisional receiver, but normally the provisional receiver continues to serve as administrator). Additionally, the court stipulates in its decision a bar date by which creditors must lodge their claims in writing with the court or, if so ordered, with the administrator. Regardless of a court order to lodge claims with the administrator, creditors may still effectively lodge them with the court. Creditors shall be notified of the bar date by public summons as well as through individual notification sent by the administrator to known creditors. The relevant information is also accessible through the register on bankruptcy and reorganization proceedings (see above). ADMISSIBILITY OF CLAIMS All monetary claims, whether or not matured, disputed, secured, liquidated, contingent, or reduced to judgement, are admissible in the debtor's bankruptcy, provided that the claim or the circumstances on which it is based arose before the opening of the proceedings. LODGEMENT OF CLAIMS Claims must be lodged in writing with the competent court or, if so ordered, alternatively with one of the administrators of the estate. Creditors who are secured by liens or collateral are exempted from lodging their claims if they are content with receiving payment solely from the liquidated value of the lien or collateral. Claims secured by a floating charge must be lodged. All proofs of claim must be filed on or before the bar date stipulated by the court. If a creditor fails to file a proof of claim in the manner prescribed by the Bankruptcy Act, the creditor forfeits any rights, based on this claim, to participate in the distribution of funds from the debtor's estate. Both the amount and the basis of a claim against the debtor's estate must be noted in the proof of claim. If the exact amount of a claim cannot be ascertained, the possible maximum amount must be noted. If the creditor demands interest on a claim, either the amount of the interest or the basis for its calculation as well as the period for which such interest is demanded must be noted separately in the proof of claim. If the basis of the claim is an open or a running obligation, the proof of claim must contain information as to how much of this claim has accrued prior to the opening of the debtor's bankruptcy. If the creditor demands priority, the creditor must state in the proof of claim the basis for such a demand. Proofs of claim must be filed in either of Finland's two official languages (Finnish or Swedish). If a proof is filed in a language other than Finnish or Swedish, the liquidator is required by law to translate it. The cost of such a translation may be deducted from the creditor's dividend. THE HEARING OF OBJECTIONS

4 4 After the bar date the administrator must compile a list of all lodged claims. This list must be submitted to the court at least two weeks before the court's deadline for the submission of written objections. Additionally, the administrator must provide a copy of the list to a creditor upon request. Creditors may submit to the court any corrections of obvious errors found in the list, provided that this is done before the court's deadline for the submission of objections. Objections to lodged claims may be submitted by the administrator, the debtor, or a creditor. All objections must be filed in writing with the court on or before the deadline stipulated by the court. The objection must state a specific demand, the facts upon which the demand is based, any available evidence, and what the objector seeks to prove with this evidence. If objections to a claim have been raised, the court shall hear the litigant parties in an ancillary court session that deals with objections. FINAL BANKRUPTCY JUDGEMENT On a stipulated date after the hearing of objections the court pronounces its findings and conclusions in the final bankruptcy judgement. This judgement indicates the admissibility and priority of all lodged (pre-bankruptcy) claims. A creditor who has duly lodged a claim as well as the debtor may appeal the court's decision provided they announce their dissatisfaction to the court within 7 days from the day the judgement was rendered. The appeal must be filed with the court clerk of the district court within 30 days from the day the judgement was rendered. ACTIONS TO SET ASIDE PRE-BANKRUPTCY TRANSACTIONS The administrator as well as creditors who have duly lodged their claims may seek, by actions to set aside pre-bankruptcy transactions, to recover assets of the debtor that were fraudulently or preferentially disposed of before the opening of the bankruptcy proceedings. A demand to set aside transactions may be initiated either by a separate action against the third party recipient of the asset or by objecting to a lodged claim. An action to set aside a transaction must normally be filed within 6 months from the bar date. Such an action may, however, be filed later if it this is done within 3 months from the time when the grounds for such an action have or ought to have become apparent to the administrator. A creditor whose claim arose as a result of an action to set aside may lodge this claim even after the bar date provided that the action to set aside was filed so late that the creditor was not able to lodge the claim by the stipulated bar date. CREDITORS' MEETINGS Primary power to decide matters regarding the administration and liquidation of the debtor's estate rests with the creditors, exercised through creditors' meetings. Decisions in the creditors' meetings require, in general, the support of creditors with claims amounting to at least half of all the claims represented in the meeting. THE DEBTOR'S POST-BANKRUPTCY LIABILITY The debtor does not obtain a discharge from any claim duly lodged in the bankruptcy proceedings unless such a claim is paid in full. Therefore, the debtor's liabilities for full settlement of all claims lodged in accordance with the provisions of the Bankruptcy Act can be satisfied also from any assets or income the debtor may acquire in the future.

5 5 PREFERENTIAL CLAIMS Creditors whose claims are secured by a lien or collateral, right of retention, or a legally registered encumbrance on the debtor's property shall receive payment from such property before and irrespectively of the debtor's other creditors, and the opening of bankrupcty proceedings does not affect the right of secured creditors to obtain and enforce payment from such property. (Claims secured by a floating charge are an exception to this rule; their status and priority is addressed below.) After the above-noted claims, secured by a right in rem, have been satisfied in full, all other prebankruptcy claims shall receive a distribution in the following order 1 : - Any child support or compensation for damages awarded a child and accrued during the period beginning one year before the opening of the debtor's bankruptcy and lasting until the court's final bankruptcy judgement. - Claims secured by a floating charge, to the extent they do not exceed 50 per cent of the liquidation value of the assets covered by the floating charge. - All other non-prioritised claims, including any portion of a floating charge claim that is undersecured according to the above-stated rule, are entitled to a proportionately equal distribution of the debtor's estate after all the previously mentioned claims have been settled. - Any ordinary, compounded, or penalty interest on a non-prioritised claim accrued after the opening of the bankruptcy proceedings. - Claims based on subordinated bonds and debentures. - Claims based on consolidated loans. 1 The costs of the administration of the bankruptcy, as well as post-bankruptcy claims arising from acts done after the opening of the proceedings on behalf of the estate, have priority over pre-bankruptcy claims.

6 6 4.0 REORGANIZATION PROCEEDINGS FOR ENTERPRISES The Reorganization of Enterprises Act (1993/47) establishes a legal framework for the reorganization of enterprises that are economically viable but currently suffering financial difficulties. The aim of the reorganization proceedings is to provide the administrator, debtor, and creditors with an opportunity to produce a reorganization plan aimed at rehabilitating the debtor's enterprise and a debt adjustment program necessary to this end (reorganization plan). Proceedings for reorganization may be used as an alternative to bankruptcy proceedings in cases where the enterprise's financial crisis may be averted or solved by a reorganization plan. The Act applies to persons and legal entities engaged in business activity. Credit institutions, insurance undertakings and certain other financial institutions are excluded. Only certain courts of first instance (19 altogether) have jurisdiction in reorganization cases. STAGES OF THE REORGANIZATION PROCEEDINGS 1. Application (by debtor or creditor) - hearing of major creditors 2. Decision to open the proceedings - appointment of an administrator and possible appointment of a creditors' committee 3. Preparation of the reorganization plan (proposal) 4. Consideration of the proposed plan - hearing of creditors regarding the proposal - vote by ballot among creditors, if necessary 5. Confirmation of the reorganization plan OPENING OF PROCEEDINGS An application for reorganization proceedings may be submitted by the debtor or by a creditor. Proceedings may be opened if the debtor is insolvent or insolvency is impending. An application for reorganization proceedings supersedes a petition for bankruptcy until the court decides whether or not to open reorganization proceedings. Once bankruptcy proceedings concerning the debtor have been opened, reorganization proceedings are no longer possible. A company in liquidation cannot apply for reorganization proceedings. Reorganization proceedings may not be opened if: - it is likely that a reorganization cannot bring about any lasting remedy to the debtor's state of insolvency, - it is likely that the debtor lacks sufficient assets to cover the costs incurred by the reorganization proceedings (and no one else has agreed to assume these costs), - it is likely that the debtor will not be able to meet obligations arising after the opening of the proceedings, - there is justifiable cause to assume that the primary purpose of the application is to thwart debt collection efforts or to otherwise prejudice the creditors, or the debtor,

7 - it is likely that the conditions for confirmation of a reorganization plan will not be fulfilled, or - the debtor's accounting is essentially incomplete or erroneous, unless the accounting can be properly and reliably reconstructed without difficulty. If one of these circumstances becomes evident after the proceedings have been opened, the administrator or a creditor may request that the proceedings be interrupted and, as the case may be, converted into bankruptcy proceedings. 7 If the proceedings are opened, all known creditors are to be given individual notice of the proceedings and the requisite deadlines by the administrator. A notice of the proceedings is also published. In addition, a notice including the relevant information is entered in a public, computerized register maintained by the Ministry of Justice and updated on a daily basis (register on bankruptcy and reorganization proceedings). STAY OF PAYMENTS AND CREDITOR ACTION An automatic stay commences upon the court's decision to open reorganization proceedings. While the automatic stay is in effect no debts that arose before the court's decision to initiate the proceedings may be paid, collected, or enforced. This automatic stay is in effect until either the reorganization plan is confirmed or the proceedings are interrupted by the court. Some actions are excepted from the automatic stay, for example payment of employees' salaries that are in arrears. Also, the automatic stay does not apply to interest on secured loans accruing after the opening of the proceedings. Debts arising after the opening of the proceedings must be paid as usual. Creditors whose claims arise during the reorgnization proceedings enjoy special legal protection if bankruptcy is opened subsequently (within three months from the interruption of the reorganization proceedings or before the execution of the confirmed plan): such claims have the same priority status as postbankruptcy claims arising out of acts done on behalf of the estate. ADMINISTRATOR AND CREDITORS' COMMITTEE When the proceedings are opened the court appoints, on the basis of proposals from the creditors, an administrator. The administrator must possess sufficient professional and other qualifications for the task and be independent of both the debtor as well as individual creditors. The duties of the administrator include the preparation of a statement on the debtor's financial situation, supervision of the debtor's business during the proceedings, and formulation of a reorganization plan. Where necessary the court may appoint more than one administrator. The administrator's expenses and fees are paid from the debtor's assets. If the number of creditors warrants, the court must appoint a creditors' committee to serve as a liaison between the administrator and the creditors. Each class of creditors has the right to be represented in the committee. BUSINESS OPERATIONS DURING THE PROCEEDINGS

8 8 The debtor retains the authority as a debtor in possession to decide on day-to-day operations and transactions undertaken in the normal course of business. The consent of the administrator is required for decisions specified in the Act; these include matters not falling within the scope of transactions in the normal course of business, such as the taking out of new loans, the disposal of significant assets etc. REORGANIZATION PLAN A proposal for a reorganization plan must be submitted within the time specified by the court. Normally this period may not exceed four months. Primarily it is the task and the responsibility of the administrator to formulate the plan. However, both the debtor and individual creditors or groups of creditors may submit their own proposals. The reorganization plan shall include a debt adjustment program and specify all the other reorganization measures that are required to rehabilitate the enterprise (such as necessary changes in operations, management, organization, capital structure etc.). Confirmation of the plan can be made contingent upon the implementation of measures specified in the proposal, so that certain specific rehabilitation measures must be undertaken before the plan, including the debt adjustment program, can be confirmed. The reorganization plan may also be formulated so that the finality of the debt adjustment program is contingent upon the implementation of certain rehabilitation measures specified in the confirmed plan. Thus, the adjustment of debts can be tied to the implementation of other rehabilitation measures. In the reorganization plan debts may be adjusted by: - altering their schedule of payments, - crediting installments first as payment toward the capital of the debt and only thereafter as payment toward the interest (capital payment prioritization), - reducing the interest on the remaining period of credit, or - reducing the amount of the unpaid debt. In the adjustment of unsecured claims all these measures are possible. However, all unsecured creditors are entitled to receive at least the equivalent of the liquidation value of their claims. Thus, the unsecured creditors are to receive more than if the debtor's assets were to be liquidated under bankruptcy proceedings. Debts secured by collateral or other rights in rem, or by a floating charge, are protected up to the value of the security (in the case of a floating charge, the value of the security amounts to 50 % of the total value of the assets covered by the charge). If the debt exceeds the value of the security, the excess is treated as an unsecured claim. Secured claims can only be adjusted in regard to the schedule of payment (which can be extended within certain limits), the allocation of payment installments between capital and interest (payments can be allocated to amortize capital before interest, whereby the present value of deferred interest payments must be protected), and the rate of interest (which can be adjusted within certain limits to protect the present value of the claim). The debtor is primarily responsible for the implementation of the reorganization plan. However, on a proposal from creditors the court may appoint a supervisor (the former administrator or another suitable person) to oversee the implementation of the reorganization plan.

9 9 If the debtor fails to comply with any of the obligations laid down in the plan, such as the servicing of the adjusted debts in accordance with the confirmed payment schedule, the debt adjustment program may be voided. CONFIRMATION OF THE REORGANIZATION PLAN When all creditors have been given an opportunity to file their statements concerning the proposed plan (the debt adjustments, the other reorganization measures, the feasibility or economic viability of the plan etc), the court may grant a certain additional period for the amendment of the proposal. The final proposal is to be subjected to a vote among the creditors. 1. If all creditors have accepted the plan, the court will confirm the plan without examining its content. 2. If a majority of each class of creditors has accepted the plan the court may confirm it after examining the merits of any objections made by creditors who have rejected the plan, and provided that these objections do not preclude confirmation. 3. Under certain conditions the plan may be confirmed even if the requisite majority has not been attained in every class of creditors. Any class of creditors cannot block confirmation of the plan, provided that he plan has received a certain minimum support among the creditors, that the treatment of the various classes of creditors corresponds to requirements laid down in the law and that other objections made by creditors who have rejected the plan do not preclude confirmation. In addition, the proposed plan itself may include preconditions in respect of reorganization measures, upon which confirmation may be contingent. The plan cannot be confirmed unless such preconditions have been fulfilled. III DEBT ARRANGEMENT PROCEEDINGS FOR PRIVATE INDIVIDUALS A third category of collective insolvency proceedings is governed by the Act on the Adjustment of Debts of a Private Individual (57/1993). This law provides a mechanism for the financial rehabilitation of overindebted individuals.