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13. ЗАРУБЕЖНАЯ ЮР1
13.1. PARTIAL ARRANGEMENT IN THE POLISH REORGANIZATION LAW
Rafai Adamus, Dr hab. Position: professor. Place of employment: University of Opole, Poland. Department: Faculty of Law and Administration, Economic, Commercial and Bankruptcy Law department. E-mail: [email protected]
Keywords: partial arrangement, debtor, creditor, claim.
Initial issues
The Reorganization Law of 15th May 2015 (hereinafter "R.L.") introduced a new institution of the so-called "partial arrangament" ("uktad cz^sciowy"; the notion of a legal language) which has no normative equivalent in the former Bankruptcy and Reorganization Law of 2003.1 According to art. 180 sec. 1 R.L. the debtor can submit arrangement proposals regarding only some of the liabilities "whose restructuring has a fundamental impact on the continued functioning of the debtor's enterprise". One should defend the view that a partial arrangement may also be concluded by a debtor with restructuring capacity but not having an enterprise (see, e.g., Article 4 sec. 1, subparagraphs 3 and 4 R.L). The essence of the partial agreement is therefore to restructure only some of the arrangement obligations determined in accordance with the norms of art. 150 - 152 R.L. From a practical point of view, the debtor may exclude, for example, small creditors from the parentheses, and thus significantly facilitate the administration of the proceedings. In addition, the partial arrangement may allow for the exemption from restructuring of debts relating to public aid, which also allows simplifying the course of the restructuring proceedings. At the same time, part of the partial arrangement can be compulsorily included in the arrangement of creditors secured in a material way on the debtor's assets (Article 181 R.L.). As a rule, the partial arrangement will be a restructuring arrangement and not a liquidation arrangement (the liquidation arrangement is not intended to ensure the continued functioning of the debt-
1 A. J. Witosz, Uktad cz^sciowy w Prawie restrukturyzacyjnym, [in :] Od restrukturyzacji do likwidacji spotek handlowych, A.J. Witosz, E. Janik, Katowice 2015, p. 41; B. Merczynski, M. Murawska, Obj^cie uktadem zabezpieczonej rzeczowo wierzytelnosci kredytowej bez zgody banku - uwagi na tle projektu Prawa restrukturyzacyjnego, Monitor Prawa Bankowego 2015, No 5, p. 94; P. Bartosiewicz, Odpowiedzialnosc odszkodowawcza banku za wadliwe wypowiedzenie umowy kredytu udzielonego przedsi^biorcy, Warszawa 2017, p. 90; P. Zimmerman, Prawo upadtosciowe. Prawo restrukturyzacyjne. Komentarz, Warszawa 2016, p. 1397-1398, P. Filipiak, [in :] P. Filipiak, A. Hrycaj, Prawo restrukturyzacyjne. Komentarz, Warszawa 2017, A. Jakowlew, Prawo restrukturyzacyjne. Komentarz, Warszawa 2016, p. 252 R. Adamus, Uktad cz^sciowy, in: Restrukturyzacja i upadtosc przedsi^bior stw 2.0, A. Hrycaj, P. Filipiak, M. Geromin, B. Groele, Warszawa 2016, p. 13, A.J. Witosz, [in :] System prawa handlowego. Prawo restrukturyzacyjne i upadtosciowe, A. Hrycaj, A. Jakubecki, A. Witosz, Warszawa 2016, p. 451, 495 - 496, A.J. Witosz, [in:] A. Torbus, A.J. Witosz, A. Witosz, Prawo restrukturyzacyjne. Komentarz, Warszawa 2016; R. Adamus, Uktad cz^sciowy a problem gtosowania w grupach, Doradca Restrukturyzacyjny 2018, no 1, p. 33 - 39; R. Adamus, Dopuszczalnosc podziatu wierzycieli na kategorie interesow w uktadzie cz^sciowym, Przegl^d Prawa Handlowego 2018, no 2, p. 34 - 37; R. Adamus, Uktad cz^sciowy obejmuj^cy wierzytelnosci zabezpieczone rzeczowo a zawieszenie egzekucji z mocy prawa, Monitor Prawniczy 2018, no 2, p. 100 -103.
ЦИЧЕСКАЯ ПРАКТИКА
or's enterprise by restructuring liabilities, see also Article 183 sec. R.L.). The partial arrangement can only be initiated by the debtor.
Restructuring proceedings in which a partial arrangement can be accepted
The partial arrangement can be accepted and approved only in two (of four) types of restructuring proceedings (a) in the proceedings for the approval of the arrangement or (b) in the accelerated arrangement proceedings (Article 182 sec. 1 R.L.). The common denominator of both types of restructuring proceedings is the requirement (absent in the case of other types of restructuring proceedings) that the sum of disputed claims entitling to vote on the arrangement does not exceed 15% of the sum of claims entitling to vote on the arrangement.
Partial system, according to the rules set out in art. 180 R.L., may be included in the proceedings for approval of the arrangement by:
a) the developer, if the partial agreement is not covered by the claims of buyers and claims secured on the real estate on which the development project is carried out (Article 351 R.L.);
b) the issuer of the bonds, if the partial agreement does not cover claims arising from the issue of bonds (Article 361 sec. 3 R.L).
It should be explained that the provisions on separate proceedings in relation to (a) the developer, (b) the issuer of bonds do not provide for the possibility of concluding an arrangement as part of the proceedings for the approval of the arrangement.
Partial arrangement and the legal prohibition of cumulative conduct of restructuring proceedings
As the legislator provided for four types of restructuring proceedings, the provision of art. 191 sec. 1 R.L. states that the commencement of another restructuring proceeding is unacceptable if the previous restructuring proceeding has not been terminated or has been validly discontinued. In addition, pursuant to art. 152 R.L. it is not permissible to cover the claim covered by another arrangement, unless the arrangement has been repealed.
From expressed in art. 191 sec. 1 R.L. the principle of prohibiting the cumulative conduct of more than one restructuring proceeding in relation to the same debtor, the legislator introduced exceptions.
First of all, according to art. 191 sec. 2 R.L. it is possible to cumulatively carry out proceedings concerning partial arrangements, if they are covered by verba legis "different creditors" (it is rather about different debts, eg each time the creditor may be the State Treasury but as to different claims). The debtor may simultaneously conduct two, three, and - theoretically - even more proceedings to conclude partial arrangements; in each of these proceedings, there must be at least two creditors. Based on the existing legal regulation, the following situation may arise: the debtor leads to the initiation of the first restructuring proceedings involving only some of the claims arising prior to the settlement date (Article 189 sec. 2 R.L.) or prior to the commencement of the accelerated arrangement proceedings (Article 189 sec.1 R.L). Then it leads to the initiation of the second restructuring proceedings which may cover claims arising before the first settlement day / the date of
the first accelerated arrangement proceedings and / or claims arising after the first settlement day / day of the first accelerated arrangement proceedings (note that the provision of Article 211 sec. 2 provides for a high degree of flexibility to determine a settlement day, the settlement day is not the result of a restructuring court hearing the case on a random day but the deliberate choice of the debtor). Cumulatively conducted restructuring proceedings to conclude partial agreements may be of a different type, within the limits of art. 182 sec. 1 R.L.
Due to the admissibility of concurrent restructuring proceedings to conclude various partial agreements, the legislator introduces the imperative of unifying certain procedural elements. According to art. 191 sec. 2 R.L. in the case of proceedings for the approval of the arrangement, the debtor enters into a contract with the same supervisor of the arrangement, and in accelerated arrangement proceedings, the court examining the subsequent request appoints the same court supervisor and judge-commissioner to perform functions in the previously initiated proceedings, unless there are obstacles. However, in order to conclude partial arrangements, it is possible to conduct simultaneously different types of restructuring proceedings under which partial arrangements are adopted: proceedings for the approval of the arrangement and accelerated arrangement proceedings.
Secondly, in the course of the rehabilitation proceedings conducted against the debtor (irrespective of whether initiated at the debtor's request or at the request of the creditor) it is acceptable to submit an application for approval of a partial agreement or an application for opening an accelerated arrangement proceedings, in which a partial arrangement is to be adopted, provided that the part-time creditors are creditors not covered by the arrangement by operation of law and did not agree in the rehabilitation proceedings to cover them with the arrangement (Article 192 sec. 1 R.L.).
In this case, by opening the accelerated arrangement proceedings to conclude a partial arrangement, the court does not appoint a court supervisor and a judge-commissioner. The function of the judge-commissioner and court supervisor is performed by the judge-commissioner and administrator appointed in the rehabilitation proceedings (Article 192 sec. 2 R.L.). The approval of the partial arrangement in another restructuring proceeding does not affect the course of the rehabilitation proceedings. The contents of the partial agreement may provide that the system will be effective after valid approval of the arrangement adopted in the rehabilitation proceedings (Article 192 sec. 3 R.L.). The legislator allows for a functional combination of both systems.
Identification of creditors covered by the partial arrangement
The choice of creditors (and, in fact, claims - see section 4 of Article 180 R.L.) to the partial arrangement is made unilaterally by the debtor. First of all, the fundamental criterion for distinguishing the composition claims is the fundamental impact of the arrangement obligations on the debtor's enterprise (Article 180 sec. 1 R.L.). Secondly, the separation of creditors covered by the partial arrangement is based on a) objective, b) unambiguous and c) economically justified criteria. These criteria must relate to the legal relationships binding the creditors with the debtor from which liabilities covered by the arrangement proposals arise (Article 180 sec. 2 R.L.). The selection criteria refer to the arrangement receivables - therefore, it is not possi-
ble to draw into the orbit of the debt arrangement not subject to the arrangement at all (with the exception of the case referred to 181 R.L.). Undoubtedly, the legislator leaves the debtor a relatively large margin of freedom.
Criteria for the selection of creditors to a partial arrangement cannot be aimed at disregarding the creditor opposed to concluding a partial arrangement (Article 180 sec. 3 R.L.). A creditor omitted by a partial arrangement has the right to the entire amount due, without any moratorium in repayment, on the dates of payments resulting from the original source of the liability. The creditor's objection to being covered by the arrangement, which was indicated as a composition creditor on the basis of objective criteria, does not yet lead to the finding of violation of the content of art. 180 sec. 3 R.L.
Criteria for the selection of claims for a partial arrangement, accepted in casu by the debtor, are subject to ex post control by the restructuring court (Article 182 sec. 2 and 3 R.L.). Within the statutory limits, the debtor may propose one or more selection criteria (eg a group of secured claims and a group of debts covering suppliers). There may be more than one selection criterion for one category of claims (eg strategic receivables of raw material suppliers above PLN 100,000).
The legislator only, for example, indicated what kind of claims may be covered by a partial agreement (Article 180 sec. 4 R.L.).
First of all, the partial arrangement may be receivables from financing the debtor's activities through granted loans, loans and other similar instruments (which, in certain circumstances, may include claims secured in cash on the debtor's assets without his consent).
Secondly, a partial agreement may be receivables due to contracts of essential importance for the debtor's business operations, in particular due to the delivery of key materials or leasing agreements for assets necessary for the activity carried out by the debtor.
Thirdly, a partial arrangement may be claims secured by a mortgage, pledge, registered pledge, fiscal deposit or sea mortgage on the objects and rights necessary to run the debtor's enterprise. At the same time, these are claims or parts thereof that are covered by collateral (see Article 181 R.L.).
Fourthly, the partial arrangement may be the largest claims determined according to a specific sum. This criterion seems to be simple. It may, for example, include receivables (of any title) due to a creditor of an equivalent in excess of the equivalent of PLN 100,000, with the proviso that they do not include receivables covered by assignment or indosa after the arrangement date (in the case of proceedings for approval of the arrangement) or after the opening of the accelerated arrangement proceedings. It may be recommended that the limit amount be appropriately "offset" from the next largest amount of receivables not covered by the selection framework.
In essence, the partial arrangement in the proceeding for the approval of the arrangement (a) of the developer cannot cover the claims of buyers and claims secured on the real estate on which the development project is carried out (Article 351 R.L.) and the partial arrangement (b) of the issuer of the bonds - receivables from of the bond issue title (Article 361 sec. 3 R.L.).
It is permissible for only one creditor to meet the criteria accepted by the debtor, as part of the group's criteria for a given group. However, a partial arrangement must always include more than one creditor.
One should defend the view that the debtor may propose the division of the creditors into groups covering particular
interest categories within the meaning of art. 161 R.L. As a result of the division of creditors into groups, the debtor may propose to individual creditors various arrangement proposals (Article 162 sec. 1 R.L.).
Admissibility of partial coverage of receivables secured by a partial arrangement without the consent of the creditor
As a rule, the arrangement of a claim secured by property on the debtor's property components and receivables secured by transferring (transfer) to collateral, the value of which is covered by the collateral requires the consent of the creditor (Article 151 sec. 2 and 3 R.L.). The creditor, fully secured by object, therefore has - as a rule - full control over his debt in the context of the arrangement.
In the case of a partial arrangement, the legislator introduced a certain breach from this principle. In other words, the debtor may "compulsorily" turn on a creditor secured on the debtor's estate into the orbit of the partial arrangement, even if the secured claim is fully covered by the collateral and the creditor is not interested in entering his claim into the arrangement.
The consent of the creditor secured in a material manner (Article 181 R.L.) for the assumption of a claim by a partial arrangement, is not required if the debtor:
a) first, presented the creditor with the arrangement proposals providing for full satisfaction, within the period specified in the arrangement, of his claims along with incidental claims, which were provided for in the contract constituting the basis for establishing the collateral, even if the contract was effectively terminated or expired, (alternative separable )
b) secondly, presented to the creditor the arrangement proposals providing for the satisfaction of the creditor to a degree not lower than that which may be expected in the case of debt recovery together with incidental receivables from the collateral.
The debtor may, in the context of the first-mentioned situation, provide the creditor with full satisfaction of his claim secured on debtor's estate, but with the possibility of a grace period and / or repayment of payments into installments (prolongation of the repayment of a secured liability). In other words, the arrangement may adversely affect the legal position of such a creditor. Under the second of the aforementioned situations, the debtor may adjust the nominal amount of the claim to the amount of anticipated satisfaction from the object of satisfaction, and therefore a debt reduction instrument is acceptable. Nevertheless, in this situation, a certain paradox appears in the legal structure: the arrangement proposals are to be adjusted to the value of the collateral (Article 181 sec. 1 in fine R.L.), whereas the claims in the part not covered by the collateral are always subject to the power by law ( Article 151 sec. 2 R.L.) provided that they were created before the opening of the restructuring proceedings (Article 150 sec. 1 point 1 R.L.). In the face of the legislator's use of a normorial functor "or" in the content of art. 181 sec. 1 R.L. there is a doubt as to whether the proposals for satisfying the claim "on the date specified in the arrangement" can be combined with the reduction of claims.
One should defend the view that the agreement adopted in relation to creditors secured on a debtor's estate which does not meet the above requirements is a system violating the law within the meaning of art. 165 sec. 1 R.L.).
The question arises whether a creditor secured on the assets of the debtor under a partial arrangement can be satisfied in a different way than through providing in money, for example by conversion of claims into shares. As it seems, one should defend the view that against the will of the creditor secured in a material manner, conversion of a claim secured by shares to shares would not be acceptable. The essence of security on a debtor's estate essentially involves the cashing of the collateral. In a situation where, for example, the satisfaction of a pledgee on a registered pledge may consist in taking over the subject of the pledge on ownership. In such a case, it seems possible to formulate arrangement proposals in a way that suits the general principles of satisfying creditors secured in material terms (in other words, a creditor - a pledgee may, under the arrangement, take over the subject of the pledge). This issue, however, may be disputed. However, if a creditor secured on a debtor's estate against his will is drawn into the arrangement, then one should maintain a standard of satisfaction which is connected with the essence of material gratification.
Judicial review of the criteria for the selection of creditors to a partial arrangement
As mentioned earlier, the criteria for the selection of creditors to the partial arrangement are subject to ex post controls by the restructuring court. The stage at which this inspection is carried out depends on the type of restructuring proceedings.
First, in the proceedings for approval of the arrangement, the court refuses to approve a partial agreement in the case of finding illegality specified in the application for approval of the partial layout of the criteria for separating the part-time creditors (Article 182 sec. 2 R.L.).
Secondly, immediately after submitting the application for the opening of the accelerated arrangement proceedings, the court decides on the legality of the criteria for separating the creditors covered by the partial arrangement (182 sec. 3 R.L.). The application for opening the accelerated arrangement proceedings is subject to examination within an instruction period of one week from the day of submitting it (Article 232 sec. 2 R.L.).
The decision on the unlawfulness of the criteria for separating creditors is for the debtor. The debtor may propose other criteria for separating the creditors within the time allowed for lodging the complaint (Article 182 sec. 4 R.L.). After the decision confirming the unlawfulness of the criteria for separating the creditors becomes final, the court discontinues the proceedings, unless the debtor proposed other criteria in the indicated period. Another change of criteria is not admissible (Article 182 sec. R.L.).
Limitations on the content of arrangement proposals
The special nature of the partial arrangement results in the need to introduce a special regulation regarding the protection of creditors' interests. At the same time, the arrangement proposals are subject to general assumptions for submitting arrangement proposals in the restructuring proceedings.
The provision of art. 183 sec. 1 R.L. provides that arrangement proposals may not provide for creditors covered by the partial arrangement benefits which reduce the ability to satisfy claims not covered by the arrangement.
If the arrangement proposals provide for securing claims covered by the partial agreement by establishing on the debtor's assets a mortgage, pledge, registered pledge, maritime mortgage or transfer of ownership of property, receivables or other right for collateral, these collateral will be ineffective against the debtor's bankruptcy or creditors if the bankruptcy the debtor will be announced within one year from the date of the decision on the approval of the partial agreement or within the same period, the bankruptcy petition will be dismissed pursuant to art. 13 of the Bankruptcy Law (Article 183 sec. 2 R.L.).
In the case of material and covered creditors, it is necessary to defend the view that - in principle - it is not acceptable to satisfy creditors in a different manner than that resulting from the nature of the given collateral.
Procedural issues
According to art. 184 R.L. in the case of collecting votes by the debtor himself, a ballot card, in addition to the elements indicated in art. 213 R.L., it includes an indication that the arrangement is partial and specifying the criteria for granting creditors a partial arrangement.
In the proceedings for the approval of the agreement, the legislator provided for the following exceptions to the general rules relating to creditors not covered by the partial agreement.
First, according to the general rule, expressed in art. 216 sec. 1 R.L. in the proceedings for the approval of the arrangement, the supervisor of the system provides the creditor, at his request, with information about the debtor's financial situation and the possibility of implementing the arrangement to the extent that is needed to make a rational decision on the arrangement (creditor's right to information). However, in the case of a partial arrangement, the debtor and the circuit overseer are not obliged to provide the creditor not covered by the partial agreement with information about the debtor's financial situation and the possibility of implementing a partial arrangement (Article
185 sec. 1 R.L.).
Second, the provision of art. 216 sec. 2 R.L. provides that the creditor may submit written objections to the circuit supervisor regarding the legality of the course of collecting votes individually or indicating other circumstances that may affect the approval of the arrangement. Meanwhile, according to art. 185 sec. 2 R.L. a creditor not covered by the partial arrangement may submit objections referred to in art. 216 sec. 2 R.L., only in the scope of unlawful determination of the criteria for separating the creditors covered by the partial agreement and in the scope of the compatibility of the arrangement proposals with art. 183 sec. 1 R.L.
Thirdly, in accordance with art. 188 R.L. the ruling of the restructuring court to approve the partial arrangement may also be brought by a creditor not covered by the partial agreement, and he may only bring charges of violation of Art. 180 R.L. (covering / not including a given claim by means of a partial arrangement) or art. 183 sec. R.L. (arrangement proposals harming creditors not covered by the partial arrangement).
A partial agreement is adopted if the majority of creditors who cast an important vote, holding a total of two-thirds of the total amount due to creditors covered by the partial agreement and entitled to vote, voted in favor of the partial arrangement (Article 186 R.L.). From the content of art.
186 R.L. there is no prohibition on the division of creditors into groups covering particular categories of interest. However, there is doubt as to whether in the case of the
division of creditors into categories of interest, voting takes place on the principles expressed in art. 186 R.L. or in the manner referred to in art. 119 sec. 2 and 3 R.L. It seems that if the legislator, in the case of a partial agreement, did not foresee other voting rules than those expressed in art. 186 R.L. it is the sense of the division of creditors into groups covering particular categories of interest that boils down to the possibility of offering creditors various arrangement proposals. This issue, however, may be disputed.
According to art. 187 sec. 1 R.L. the partial arrangement includes creditors who meet the criteria for distinguishing creditors and have been included in the receivables list or appeared on the creditor meeting (which essentially refers to the case of accelerated arrangement proceedings), submitting a writ of execution to the judge-commissioner or were allowed to attend the meeting at based on art. 107 sec. 3 R.L. (creditors with receivables subject to a condition precedent or disputable claims that have been substantiated). The provision of art. 166 sec. 1 R.L., which states that "the arrangement binds creditors whose claims are covered by the arrangement, even if they have not been included in the list of claims" shall not apply.
In the decision on approval of the arrangement, the court indicates the creditors covered by the partial agreement (Article 187 sec. 2 R.L.).
Final remarks
The institution of the partial arrangement will certainly make restructuring procedures more attractive. Undoubtedly, it has a number of practical values that can be properly exposed in practice.
Bibliography.
1. R. Adamus, Uktad czçsciowy, in: Restrukturyzacja i upadtosc przedsiçbiorstw 2.0, A. Hrycaj, P. Filipiak, M. Geromin, B. Groele, Warszawa 2016
2. R. Adamus, Uktad czçsciowy a problem gtosowania w grupach, Doradca Restrukturyzacyjny 2018, no 1
3. R. Adamus, Dopuszczalnosc podzialu wierzycieli na kategorie interesow w ukladzie czçsciowym, Przeglqd Prawa Handlowego 2018, no 2
4. R. Adamus, Uklad czçsciowy obejmujqcy wierzytelnosci zabezpieczone rzeczowo a zawieszenie egzekucji z mocy prawa, Monitor Prawniczy 2018, no 2
5. P. Bartosiewicz, Odpowiedzialnosc odszkodowawcza banku za wadliwe wypowiedzenie umowy kredytu udzielonego przedsiçbiorcy, Warszawa 2017
6. P. Filipiak, [in .] P. Filipiak, A. Hrycaj, Prawo restrukturyzacyjne. Komentarz, Warszawa 2017
7. A. Jakowlew, Prawo restrukturyzacyjne. Komentarz, Warszawa 2016
8. B. Merczynski, M. Murawska, Objçcie ukladem zabezpieczonej rzeczowo wierzytelnosci kredytowej bez zgody banku - uwagi na tle projektu Prawa restrukturyzacyjnego, Monitor Prawa Bankowego 2015, No 5
9. A. J. Witosz, Uklad czçsciowy w Prawie restrukturyzacyjnym, [in .] Od restrukturyzacji do likwidacji spolek handlowych, A.J. Witosz, E. Janik, Katowice 2015
10. A.J. Witosz, [in .] System prawa handlowego. Prawo restrukturyzacyjne i upadlosciowe, A. Hrycaj, A. Jakubecki, A. Witosz, Warszawa 2016
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12. P. Zimmerman, Prawo upadlosciowe. Prawo restrukturyzacyjne. Komentarz, Warszawa 2016, p. 13971398
