Restructuring Law

The Restructuring Law has been in force since the beginning of 2016.
It is a collection of flexible economic and legal solutions for entrepreneurs at different stages of a financial crisis. The Restructuring Law creates favourable conditions for undertaking ventures which are burdened with reasonable risk and provides an opportunity to reorganise unsuccessful undertakings.
Even the best legal regulations will fall short of expectations, if entrepreneurs themselves do not try to detect insolvency risks early. A fast reaction to problems related to the condition of the enterprise is of key importance here. The rule is – the earlier, the better. However, the intention to save an enterprise is not sufficient. It is necessasry to have provisions which will help the entrepreneur in its efforts. And it is where the Restructuring Law comes into play.

 

The main objectives of the Restructuring Law

The main objective of the new legal regulations is to improve the conditions for successful restructuring of troubled enterprises. An efficient system that assists entrepreneurs in trouble provides a basis for every competitive market economy in the world. Transparent rules, which help debtors and creditors to solve their common problems without the need to eliminate any entity from business, are important stimuli to Poland’s growth and increased economic potential.
The Restructuring Law is based on the assumption that the economic value of an enterprise should be protected and the rights of creditors should be respected, which is achieved by the following objectives of the regulation:
  • To provide entrepreneurs and their contracting parties with effective restructuring instruments, while maximising the protection of creditors’ rights,
  • To clearly separate restructuring proceedings from stigmatising bankruptcy proceedings,
  • To increase the rights of active creditors,
  • To maximise the speed and effectiveness of restructuring and bankruptcy,
  • To deformalise proceedings and increase the use of state-of-the-art ICT tools therein,
  • To implement the “new chance” policy – to provide an opportunity of “a new beginning” to entrepreneurs whose failure resulted from an unfavourable change in the economic conditions,
  • To increase the liability of dishonest and bankrupt debtors.

Professionalisation of restructuring services

a restructuring adviser

The key intent of the new regulations is to professionalise the market of restructuring services. A licensed restructuring adviser is an entity which, thanks to their qualifications (management capabilities, knowledge of economics, preparation in finance and law), will ensure both the proper use of the restructuring mechanisms and support for the debtor.

The Restructuring Law provides for the participation of such an adviser throughout the reorganisation process. Depending on the type of the proceeding before the restructuring court, the adviser will hold different positions (arrangement supervisor, court-appointed supervisor, administrator).

The position of an advisor requires extensive knowledge of economics and law. As successful restructuring requires the highest professional standards, a restructuring adviser must have the characteristics which will ensure that the process runs smoothly, subject matter assistance is provided for all the parties and the laws and regulations are properly applied.

A restructuring adviser is, therefore, to play the role of a guide who will pull the business out of the crisis in the most advantageous way. At the same time, a restructuring adviser will guard the rightful interests of creditors, taking care that the restructuring is not conducted at the expense of only one of the parties but that all the participants will safely reach their destination, namely restructuring. The process is about combining often conflicting interests of different parties.

The influence of creditors

on the course of restructuring with a limited role of the restructuring court

The Restructuring Law introduces institutions which increase the influence of creditors on the course of the proceedings, while simultaneously limiting the role of the court and the judge-commissioner. Creditors will be able to effectively demand that a Creditors' Committee be established, and their request will oblige the judge-commissioner to establish it. Moreover, the judge-commissioner will be obliged to appoint a certain creditor, designated by the creditors who have the adequate total amount of claims, to the Creditors' Committee. To the same extent, the judge-commissioner will have the obligation to change the composition of the Creditors' Committee. As the Creditors' Committee will have real powers in relation to the course of the proceeding, the influence on its composition will provide creditors with greater control over the restructuring process and the real opportunity to develop the text of its key decisions.

Creditors which have 30% of claims will be able to submit an application for appointing a certain person as a court-appointed supervisor or an administrator. The judge-commissioner will be able to refuse to appoint the designated person only in exceptional cases. This means the end of arbitrary actions of administrators or supervisors who could operate in an open conflict with the debtor and the debtor’s creditors.

The Creditors' Committee will be able to, among others, have the person of the court-appointed supervisor or administrator changed, or to allow the debtor to individually perform management duties, albeit with some limitations. The Restructuring Law also provides for a number of regulations which are to prevent the protraction of the proceedings. In order to achieve it, instructional time limits will be introduced for the court-appointed supervisor and the administrator, the judge-commissioner and the court, so that their failure to act will not adversely affect the status of the proceedings and the situation of the debtor and the creditors.

Acceleration and streamlining of the proceedings

under supervision of the restructuring court

An instrument that facilitates the procedure by eliminating the existing prolonged institution of submission of claims has been introduced. A restructuring advisor who holds the relevant

position in the proceedings will prepare only a record of claims based on the debtor’s accounting books and other documentation. In fast-track arrangement proceedings, a record of disputed claims will also be prepared.

In arrangement and sanation proceedings, the record of claims may be appealed against by the creditors and the debtors, by raising an objection. An objection may be raised by the debtor, on condition that the record of claims is inconsistent with the debtor’s statement. It will be possible to raise an objection to the presentation of claims in the record, as well to omission of a claim in the record.

The Restructuring Law also provides for introduction of numerous instructional time limits for the court and time limits for supervisors and administrators, which facilitate the conclusion and performance of an arrangement.

The Restructuring Law provides for the launch of the Central Restructuring and Bankruptcy Register as of 1 February 2018 (Centralny Rejestr Restrukturyzacji i Upadłości (CRRiU)). The Register will be mainly used for posting decisions, orders, documents and information pertaining to restructuring and bankruptcy proceedings.

Submissions and documents can be filed and served through the Register.

Until CRRiU is launched, some of its tasks will be performed by Monitor Sądowy i Gospodarczy (MSiG).

Procedures and ways

Four restructuring procedures and six ways of arrangement

The Restructuring Law introduces procedures which make it possible to achieve the set objectives, namely the conclusion of an arrangement with creditors (and in the case of the sanation proceedings – also further corrective effects) in the shortest time possible. The two basic procedures at the court stage will be exceptionally short: approval of an arrangement as a result of independent collection of votes by the debtor will take 2 weeks and the fast-track arrangement proceedings – 2 months.

        Proceedings to approve an arrangement

These proceedings, which are the most deformalised ones, provide for individual (with the help of a restructuring adviser) collection of votes of the creditors by the debtor. They are dedicated for entrepreneurs which are at risk of becoming insolvent, or are insolvent to a small extent. An application for approval of an arrangement will be filed with the court, only after the debtor obtains the majority of votes required to accept the arrangement. Such a solution will help the debtor to actively and flexibly start individual talks with the creditors and to present the outcomes of such talks to the court. The debtor will have the obligation to select a person who has a restructuring adviser license, i.e. presently, the receiver license, who, as a professional, is to verify any arrangement proposals, both as regards their compliance with the applicable laws and regulations, and with the agreements with the creditors. These proceedings may not be conducted, if the debtor has over 15% of disputed liabilities, and, therefore, they are recommended in a situation, where the debtor is not in any serious conflict with the creditors. A greater amount of freedom of the debtor results in a weaker possibility to secure the debtor’s interests. Therefore, it will not be admissible to stay execution in this procedure.

        Fast-track arrangement proceedings

The fundamental difference between these proceedings and the proceedings to approve an arrangement is about the fact that an arrangement will be concluded not by way of individual collection of votes by the debtor, but at the Creditors' Meeting convened by the court. Moreover, it will be possible to secure the debtor’s assets by staying the execution of claims covered by the arrangement, if the execution could make it difficult or impossible to conclude an arrangement. These proceedings may not be conducted, if the debtor has over 15% disputed liabilities. These proceedings are located between the fact-track mode (the proceedings to approve an arrangement) and the standard arrangement proceedings.

        Arrangement proceedings

These proceedings will be conducted in line with principles analogous to those in the present bankruptcy proceedings with the possibility to come to an arrangement. It is dedicated to entrepreneurs which are already insolvent and want to save their enterprise instead of declaring bankruptcy (whose only form is liquidation bankruptcy). In principle, the entrepreneur will keep the management, however,

under continuous supervision of the court and the creditors. In exchange for those limitations, the debtor will be able to get protection against civil law execution (in line with the principle that the greater the security against execution, the greater the control over the debtor’s actions – interests of creditors also have to be protected against lawlessness of insolvent debtors). The debtor will also have to submit arrangement proposals as early as in the application to the court. This proceeding may not be conducted, if the debtor has less than 15% disputed liabilities.

        Sanation proceedings

The sanation proceedings will enable not only advanced restructuring of the debtor’s liabilities, but also restructuring of the debtor's assets and employment by introduction of legal solutions which are favourable to the debtor. They give greater protection against uncontrolled execution. It allows for termination of unprofitable contracts and reduction of unnecessary jobs, and sale of unnecessary assets. At the same time, the debtor’s ability to manage their assets will be considerably restricted. The court will appoint an administrator who will take over the powers of the management board and representation of the entrepreneur. The business will be subjected to restrictive supervision by the judge-commissioner and the creditors. These proceedings dedicated to insolvent businesses, which, however, may be reasonably saved. The objective is not only to write off the debts of the business, but also to completely restructure it economically, i.e. to restore the ability of the business to compete on the market so that it will not run into debt again.

        Partial arrangement

A partial arrangement allows for conclusion of an arrangement by way of independent collection of votes or a fast-track arrangement proceeding only with the key creditors. It provides the narrowest scope of interference in the operation of the debtor possible, by maximising the effects of the agreement with the biggest creditors. It allows for compulsory inclusion of creditors secured in rem in the arrangement, also during the course of sanation proceedings, in which they did not want to participate.

        Arrangement in bankruptcy

An arrangement in bankruptcy gives a greater chance of better management of the debtor’s assets, which is acceptable to the creditors, in the last period before the debtor’s liquidation, as well as and opportunity to use the existing potential of the debtor's business, which could not be used to conduct effective restructuring as a result of delayed reaction of the management board.

Entering into an agreement with creditors

as part of a so-called partial arrangement

In fact, the debtor’s fate is often decided not by all creditors but by the biggest of them (e.g. banks). Reaching an agreement with them results in the business’ continued operation and satisfaction of all other claims.

A partial arrangement will allow for an agreement with those biggest creditors without the need to initiate a procedure which pertains to all creditors. Thanks to that, the proceeding itself will be much shorter and useful.

However, it is unacceptable to formulate arrangement proposals in such way that their sole objective is to bypass a creditor who opposes the arrangement.

Preparation of a restructuring scheme

A restructuring scheme should contain at least the following information:
  • A description of the debtor’s enterprise with information on the current and future condition of supply and demand in the sector of the market on which the business operates;
  • An analysis of the reasons for the debtor's difficult economic situation;
  • A presentation of a proposed future strategy of running the debtor's business and information on the level, and types of risk;
  • A full description and review of the planned restructuring measures and any costs related thereto;
  • A schedule of implementation of the restructuring measures and the final deadline for implementation of the restructuring scheme;
  • Information on the production capacity of the debtor’s business, which includes but is not limited to the use and reduction thereof;
  • A description of methods and sources of funding, including the use of available capital, sale of assets in order to finance the restructuring, the financial liabilities of shareholders and third parties, which include but are not limited to banks and other lenders, the amount of state aid granted, and de minimis aid in agriculture or fishery, applied for and granted, and the need therefor;
  • Projected profits and losses for the next five years, based on at least two forecasts;
  • The first names and surnames of the persons responsible for the performance of the arrangement;
  • The first names and surnames of the authors of the restructuring scheme;
  • The date of the restructuring scheme.

Our experts in the legislative process

restrukturyzacyjnego

The new Restructuring Law Act came into force as of 1 January 2016. The adopted provisions express a critical view of the previously applicable principles and procedures implemented for entities in trouble. They introduce four new restructuring procedures which will replace arrangement bankruptcy and reorganisation proceedings. This means a revolution in the way of perceiving insolvency and restructuring mechanisms in Poland.

Our experts Piotr Zimmerman and Patryk Filipiak, PhD were among the authors of the new regulations. They participated in the work of subsequent Teams of the Minister of Justice for Amendment of the Bankruptcy and Reorganisation Law since 2012.

In May 2015, Piotr Zimmerman and Patryk Filipiak were appointed by the Minister of the Economy to the Business Law Team, where they will continue their legislative work. The objective of the team is to continuously assist the Minister of the Economy in shaping conditions for undertaking and conducting business activity, in particular in the area of restructuring and bankruptcy.

Analysing the current status and preparing recommendations:

  • Ordinance of the Minister of Justice of 14 May 2012 on appointment of the Team for Amendment of the Bankruptcy and Reorganisation Law— DOWNLOAD
  • Recommendations of the Minister of Justice of 26 February 2013 — DOWNLOAD “Restructuring Law” Bill and draft of amendments to the Bankruptcy Law:
  • Ordinance of the Minister of Justice of 9 April 2013 on appointment of the Team for Preparation of Bills for the Bankruptcy and Reorganisation Law.

DOWNLOAD

  • The bill with reasons — DOWNLOAD
  • The Restructuring Law Act of 15.05.2015 — the applicable version — DOWNLOAD
  • Further legislative work:

Our publications

Komentarz do ustawy z 15 maja 2015 r. – Prawo restrukturyzacyjne (cz. 3)

Author: , ,

Źródło: gazetaprawna.pl

Komentarz do ustawy z 15 maja 2015 r. – Prawo restrukturyzacyjne (cz. 1)

Author:

Źródło: gazetaprawna.pl

Komentarz do ustawy z 15 maja 2015 r. – Prawo restrukturyzacyjne (cz. 2)

Author: ,

Źródło: gazetaprawna.pl

Priorytety to naprawa i oddłużenie. Upadłość jest ostatecznością.

Author: ,

Źródło: gazetaprawna.pl


Przemysław Woźniak

Przemysław Woźniak

project manager

p.wozniak@zfrsa.pl