The principle of equal restructuring conditions.
15 grudnia 2018

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The principle of equal restructuring conditions

 

As a rule, restructuring proceedings have an egalitarian and non-discriminatory character with regard to creditors. The principle of equal treatment of creditors (the principle of pari passu) in determining the conditions of restructuring, clearly expressed normatively, results from the very essence of the restructuring proceedings, which aims not only to protect the interest of the individual creditor but all the debtor's creditors. The provision of art. 162 R.L.. formulating the imperative of equal treatment of creditors is only a fragment of the regulation guaranteeing equal treatment of creditors.


Importantly, the principle in question applies to all creditors, but if the division of creditors into groups was made then it is limited to the given category of interest. In other words, there is no doubt that disproportions in the arrangement proposals for particular interest categories are acceptable. These disputes - as it seems - cannot, however, violate the principle of proportionality. It should be stressed that the duty of respecting the principle of proportionality indicated here does not arise expresis verbis from the linguistic interpretation of the law, but is the product of the teleological and systemic interpretation of the Restructuring Law. However, one should express the view that it is not allowed to create an individual category of interest (a category of interests may even have only one item on the list) for unjustified privileges of some creditors or harm to others. In the event of a division into groups, if one of the groups of creditors had arrangement terms that were far less favorable than the other groups, then in this case it could be alleged that the principle of equal treatment of creditors was violated. Differences in the treatment of individual groups of creditors, which should be repeated, should be subject to the principle of proportionality.

 

From the point of view of the principle of equal treatment of the creditor, it is irrelevant whether the claim is of a civil or public law nature or whether special provisions introduce a special kind of preference for a given claim. It is also irrelevant whether the creditor is a domestic or foreign creditor. In the restructuring arrangement, the principle of the same treatment of creditors does not override the priority right to satisfy a given property imposed by some provisions before other creditors (i.e, Article 295 § 3 Code of Commercial Companies, 486 § 3 Code of Commercial Companies, 496 § 1 Code of Commercial Companies, Article 122 § 2 Code of Civil Procedure) ). Debts enjoying pre-emptive rights are therefore subject to restructuring on a par with other claims. As part of the restructuring arrangement, no claims are settled from the entrepreneur's assets, but their restructuring takes place, and the priority right operates at the stage of obtaining satisfaction. However, for those creditors to whom the pre-emptive right serves, a separate category of interests may be established. On the other hand, this problem is more complex in the case of a liquidation arrangement. As it seems, the liquidation arrangement can, however, break the "priority right to satisfy". The obligation of equal treatment of creditors indicated in the commented provision concerns the "conditions for restructuring liabilities".


Further doubts may arise with regard to non-pecuniary claims. The opening of restructuring proceedings does not result in the conversion of a non-monetary claim into a monetary claim. If, in the wording of the arrangement proposals, the debtor anticipates changes in the performance of various non-cash obligations, he should also act in accordance with the principle of equal treatment of the creditors. The question arises what criterion should be used to assess whether the debtor does not violate the indicated rule. Certain problems may arise in the case of a large heterogeneity of non-cash obligations, the level of maturity of the commitment, etc. It seems that this problem should be investigated on a case-by-case basis.

 

From the principle of the same treatment of creditors (or all creditors or creditors within a given group), the legislator has rightly introduced a few exceptions. Before their presentation, it is worth noting that if "more favorable conditions" are allowed for some creditors, the legislator does not express any limits for the disproportion of arrangement proposals between creditors. However, the differences between the treatment of individual interest categories should be subject to the principle of proportionality. This disproportion in the construction of the restructuring conditions does not translate into the strength of the creditor's voice at the creditor meeting. Exceptions to the principle of equality concern both the situation in which creditors jointly vote on the arrangement and when the creditors are divided into groups.
First, less favorable conditions for restructuring may be granted to creditors who have agreed to them in accordance with the principle that volenti non fit iniuria.

 

Secondly, it should be assumed that traditionally more favorable conditions for restructuring liabilities can be granted to small creditors (de lege lata even a partial arrangement is possible). The threshold of "small" claims and the number of sub-groups of creditors with small claims are determined by the author of the arrangement proposals. The regulations do not introduce any limits as to the number of creditors with small claims. Theoretically, it is possible that only one creditor will have a small claim or all the creditors, except one, will have small claims. There are also no criteria for determining the justified disproportion between minor claims and claims that do not have this nature. However, it should be avoided that the difference between one and the other category of claims will amount to several zlotys. There are also no restrictions for differences in arrangement proposals for creditors with small claims and for other creditors. The design of the arrangement proposals should, however, correspond to the principle of proportionality. When determining the threshold for minor claims, the general debtor's indebtedness and the average values ​​of transactions made by the debtor with creditors should be taken into account. As a rule, this note is accurate but may not be useful in all cases (i.e. when the arrangement covers only the "ends" of payments to creditors, which the debtor tried to satisfy as proportionally).


Thirdly, the conditions for the restructuring of receivables secured in cash on the debtor's assets may be differentiated according to their priority (Article 163 sec. 3 R.L.). The intention of this principle is to diversify the arrangement proposals in relation to secured creditors on the debtor’s estate due to their right of priority.


Fourthly, the granting of more favorable conditions for the restructuring of the debtor's obligations is acceptable to the creditor who, after opening the restructuring proceedings, granted or is to grant financing in the form of credit, bonds, bank guarantees, letters of credit or other financial instrument necessary to implement the arrangement (i.e. loans, bank loan, incorrect deposit).[1] The legislator allows favoring the debtor financing entity through any financial formula consistent with the law. Acquiring new financing during restructuring procedures is one of the basic practical problems of the debtor. The legislator has aptly decided to introduce facilities for entities that will open new sources of financing for the entrepreneur.

 

Fifth, in the developer restructuring (Article 355 sec. 1 R.L.), arrangement proposals may provide for different treatment of buyers depending on whether they pay additional payments to complete the development project.

 

Another important issue in the field of the topic discussed here is the issue of the so-called the economic importance of the creditor.[2] The economic importance of the creditor reflects the degree of dependence of the debtor on the supply of products or services from the creditor. The higher the degree of the debtor's dependence on the creditor, the higher its economic importance. The economic importance of the creditor is a different category from the importance of the creditor's vote in voting on the arrangement proposals. While the significance of the creditor's vote in the voting on the arrangement offers is correlated with the percentage of the creditor's claims in the total receivables (under the category of interests in which the creditor votes), the economic significance of the creditor depends on the mutual market links. An example may be a debtor, for whom the supply of raw material is carried out mainly by one of the creditors, despite the fact that the creditor may have a minor share in the arrangement claims (thus his vote is not important for the conclusion of the arrangement) his role in implementing the arrangement cannot be overestimated. Assuming that after the conclusion of the agreement, there will be no sudden market changes, the creditor should still perform most deliveries during the period of performance of the arrangement. However, if the creditor refuses to cooperate, it may turn out that the debtor's restructuring, despite the conclusion of the arrangement, will not be successful. For the above reasons, attention should be paid not only to the creditor's participation in the number of votes necessary to conclude the arrangement, but also its economic significance for the debtor. From an economic point of view, the creditor who gave the debtor a loan to perform the arrangement and the creditor who supplies the majority of the debtor's supplies is a group of creditors with the same strategic importance to the arrangement. Due to the lack of statutory regulations, the debtor may encounter considerable problems during negotiations regarding the shape of arrangement proposals - creditors with strategic importance for the debtor's functioning (not for the arrangement) may demand special treatment. De lege lata, it is possible to create a separate category of interests for strategic suppliers and to provide these creditors with special treatment.

 

 

[1] A. Lubicz – Posochowska, Uprzywilejowanie podmiotu finansującego układ w prawie restrukturyzacyjnym w przypadku nieudanej restrukturyzacji, in : Studia Ekonomiczne. Zeszyty Naukowe Uniwersytetu Ekonomicznego w Katowicach, Współczesne Finanse 2017, no 9, s. 17.

[2] R. Adamus, M. Wadowski, Ekonomiczne i prawne aspekty restrukturyzacji przedsiębiorcy w postępowaniu upadłościowym z możliwością zawarcia układu, Jurysta 2008r., no 1,p. 3

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