What is the effectiveness of restructuring proceedings in Poland?
04 grudnia 2018

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What is the effectiveness of restructuring proceedings introduced into the Polish legal system by the Act of 15 May 2015. Restructuring law?

 

The term "restructuring proceedings" has four completely different designations: 1) proceeding to approve the arrangement, 2) accelerated arrangement proceedings, 3) arrangement proceedings, 4) rehabilitation proceedings. The term "restructuring" has a broader meaning within the law and covers its scope corporate reorganization such as merging, transforming, dividing or changing within a grouping of companies. See. A. Radwan, Ius dissidentium, Granice konsensusu korporacyjnego i władzy większości w spółkach kapitałowych, Warszawa 2016, p. 153. See also E. Janik, Zakres regulacji prawnej Prawa restrukturyzacyjnego, Prawa upadłościowego oraz transformacji i likwidacji spółek handlowych, in: Od restrukturyzacji do likwidacji spółek handlowych, edited by. A.J. Witosz, E. Janik, Katowice 2015, p. 11; A. Hrycaj, Cztery postępowania restrukturyzacyjne, Dor. Restr. 2015, no 1, p. 2

 

By the way, it should be emphasized that foreign legal systems also adopt many tools (procedures) in connection with the debtor's insolvency. See i.e. P. Chauvin, Francuskie prawo przedsiębiorstw przeżywających trudności (droit des entreprises en difficultes) in: Modele postępowań upadłościowych w Polsce i wybranych krajach UE edited by S. Morawska, Warszawa 2011, p. 238.

 

The aim of the restructuring proceedings is to avoid declaring the bankruptcy of the debtor by allowing him to restructure by entering into an arrangement with the creditors, and in the case of rehabilitation proceedings - also by carrying out rehabilitation activities, securing the right creditor's rights.

 

UNCITRAL in the Legislative Guide, part 1 (p. 14) defines the main objectives of a modern and effective law on insolvency. These include: 1) ensuring legal certainty in the market to support economic stability and economic growth; 2) maximizing the value of assets; 3) maintaining the balance between liquidation and restructuring (according to UNCITRAL, modern law should provide for restructuring and liquidation procedures); 4) ensuring equal treatment of creditors with a similar legal situation (the so-called pari passu principle); 5) ensuring timely, efficient and impartial initiation of procedures; 6) providing a transparent and predictable right that includes incentives for collecting and providing information; 7) recognition of existing creditors' rights and establishment of transparent rules for the order of satisfying claims.

 

The justification for the draft Restructuring Law stipulates that "international experience indicates that improving the conditions for effective restructuring and rapid liquidation of enterprises is an important element for the country's growth and economic potential. The reform is based on the assumption of protecting the economic value of the company and respecting the rights of creditors, which implement the following objectives of regulation: (a) Providing entrepreneurs and their contractors with effective instruments for restructuring while maximizing the protection of creditors' rights; (b) Ensuring institutional autonomy of restructuring proceedings in isolation from stigmatizing bankruptcy proceedings; (c) Introduction of the principle of subsidiarity in bankruptcy proceedings as ultima ratio to the economic failure of the restructuring; (d) Increase the rights of active creditors; (e) Maximizing the speed and efficiency of restructuring and bankruptcy; (f) Implementation of the "new chance" policy - ensuring the possibility of a "new start" for entrepreneurs whose failure of an economic venture results from an adverse change in economic conditions ".

 

Emphatic and dogmatic research is necessary because in the doctrine strict critique of the restructuring law was carried out, even with the accusation of unconstitutionality of the adopted solutions, including key, fundamental institutions. The main objection seems to have been reduced to - in the author's opinion - critical remarks - failure to ensure proper protection of creditors' rights. F. Zedler, Sytuacja prawna wierzycieli w postępowaniach restrukturyzacyjnych, in: Z badań nad prawem prywatnym. Księga pamiątkowa dedykowana Profesorowi Andrzejowi Kochowi, edited by A. Olejniczak, M. Orlicki, J. Pokrzywniak, Poznań 2017, p.. 583.

 

The law on bankruptcy and entrepreneurs 'restructuring is increasingly perceived as an important factor in encouraging economic development and investment, as well as a factor favoring entrepreneurs' activity and preservation of jobs (for example in the preamble of the United Nations Commission on International Trade Law and in the preamble of Resolution No. 65/24 General Assembly, in: UNCITRAL Legislative Guide on Insolvency Law, Part Three: Treatment of enterprises in insolvency, New York 2012, pp. 113 and 115). Substantive condition of bankruptcy and restructuring law has a very real impact on the economy. There is no doubt that a number of solutions adopted in the Bankruptcy and Reorganization Law have been subject to serious criticism both in theory and in the practice of applying the law. The importance of bankruptcy and reorganization law is underlined in the context of the effects of macroeconomic crises.

 

Restructuring law through the volume of regulation - as well as the new bankruptcy proceedings - aims at far-reaching professionalization of this area of ​​law.

 

In the justification of the draft Restructuring Law, it was pointed out that "the protection of the economic value of a company in a crisis is of significant importance for the national economy. The sanation function will be expressed in enabling the debtor to effectively restructure the enterprise. However, restructuring proceedings cannot lead to deprivation of legal protection of the debtor's creditors. Hence, along with the function of a sanation, the provisions of the aforementioned they carry out the debt collection function. Restructuring proceedings are to lead to the satisfaction of the creditors through the implementation of the arrangement concluded and approved by the court. The restructuring law is intended to ensure, as far as possible, conditions for the implementation of arrangements that ensure maximum satisfaction of creditors, with the maximum protection of the economic value of the enterprise.”

 

Securing the right creditor's rights takes place primarily by creating conditions for the fullest satisfaction of the creditors, more advantageous than in the case of bankruptcy, which results in the liquidation of the bankrupt's assets. It is necessary to defend the view that avoiding bankruptcy cannot take place at the expense of prejudice to the legitimate rights of all creditors.

 

One cannot escape the fact that many European countries have recently also decided to modernize their own bankruptcy and restructuring laws. Significant changes in this regard took place in Germany, Spain, Austria, Switzerland, Italy, Greece, England, the Czech Republic, etc. The amendment of the law in Poland thus corresponds to a general European trend related to the economic crisis that began at the end of the first decade XXI century. See e.g., Insolvency reforms in Europe, Loan Market Association News, 2012, no 7, p. 21, S. Braun, German Insolvency Act: Special Provisions of Consumer Insolvency Proceedings and the Discharge of Residual Debts, German Law Journal 2005, vol. V, no 1, p. 59, G. Hoher, German for “Modernising Bankruptcy Law”, Eurofenix, 2012, no 1, p. 16, A. Satava, M. Dancisin, New Czech Insovency Law on its Way, Butterwoths Journal of International Banking and Financial Law, 2006, no 11, p. 450, A. Scarsso, Debt restructuring in the “new” Italian Insolvency Law, Studia Iuridica Toruniensia, vol. V, p.7,. L. Lai, Italian Special Administration, a solution for restructuring of large companies in crisis (Parmalat and Alitalia cases), Fenix.PL, 2011, no 3, p. 23, P. Varul, P. Viirsalu, Overview of the Debt Restructuring and Debt Protection Act, Fenix.Pl 2011, no 3, p. 44.).

 

It is worth noting the Commission's recommendation of 12 March 2014 on a new approach to failure in business and insolvency (2014/135 / EU), Office. EU L 74/65. As set out in recital 1, the objective of the recommendation is' to ensure that profitable companies in financial difficulties, irrespective of where they are located in the Union, have access to national insolvency frameworks that allow for restructuring at an early stage to prevent their insolvency, thus ensuring the maximization of total value for creditors, employees, owners and for the entire economy. The recommendation also aims to allow honest entrepreneurs who have been declared bankrupt to take a second chance within the Union. "Another document that should also be mentioned is the European Parliament resolution of 15 November 2011 with recommendations to the Commission on insolvency proceedings in the context of company law in the EU.

 

 

The issues of bankruptcy and restructuring are of interest to various centers with a global reach, which underlines the importance of effective legal regulation in this area. UNCITRAL has published two important documents relating to the problem of insolvency law. First - UNICITRAL Legislative Guide on Insolvency Law - from 2005, consisting of two parts: Part One. Designing the Key Objectives and Structure of Effective and Efficient Insolvency Law, Part Two. Core Provisions for an Effective and Efficient Insolvency Law. The second document is the UNCITRAL Legislative Guide on Insolvency Law. Part three: Treatment of enterprise groups in insolvency, published in New York in 2012. UNCITRAL reserves that it is not its intention that recommendations regarding bankruptcy law included in the Legislative Guide become an element of individual legal orders

 

The Legislation Guide contains important issues that are recommended to consider when creating the norms of bankruptcy and restructuring law. What's more, UNCITRAL does not recommend only one solution, but points to various possibilities of solutions that may possibly be used by legislators, taking into account the local (national) legal context. See. on this subject, R. Adamus, Światowe standardy prawa upadłościowego a interesy banku jako wierzyciela upadłego, Monitor Prawa Bankowego no 5/2013, p. 61, R. Adamus, Prawo kontraktów a prawo upadłościowe według rekomendacji UNCITRAL, Rejent no 6/2013, p. 9.

 

 

In the literature on the subject P Kupis, Dysfunkcje postępowań upadłościowych, Biuletyn PTE 2017, no 2, p. 35 indicates that "long-term research conducted by the World Bank shows that the highest level of debt settlement occurs in countries where entrepreneurs have easy access to tools enabling them to carry out restructuring processes, both in the event of threat of insolvency, and the loss of the ability to pay due liabilities. Therefore, there is a visible trend of improving access to reorganization procedures. In 2014 alone, there were 12 reforms to the bankruptcy law, of which as many as 10 concerned the implementation or amendment of the regulations relating to restructuring issues. "

 

In 2016, the first year of application of the new regulations, 4 proceedings were opened for approval of the agreement, 117 accelerated arrangement proceedings, 30 arrangement proceedings, 53 rehabilitation proceedings. At the same time, 26 bankruptcy proceedings were opened with the possibility of concluding the agreement and 530 bankruptcies were announced in the liquidation.

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