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28. ЗАРУБЕЖНЫЕ НАУЧНЫЕ ШКОЛЫ
28.1. SOME REMARKS ON THE ISSUE OF THE LEGALITY OF ARRANGEMENT PROPOSALS UNDER THE POLISH REORGANIZATION LAW
Rafai Adamus, prof. UO dr hab. Department of Economic, Commercial and Bankruptcy Law at the Faculty of Law and Administration University of Opole Poland
Place of employment: Law and Administration University of Opole Poland Keywords: Arrangement, arrangement proposals, creditor, debtor
The arrangement proposals are a central, nodal issue of restructuring under the Polish Reorganization Law of 15th May 2015 (hereinafter «R.L.»). The legislator leaves a large margin of freedom when formulating them. However, the noncompliance of the arrangement proposals with the law means the failure of restructuring. The restructuring court examines the legality of the arrangement proposals ex officio.
Standard of general competence in relation to arrangement proposals
In restructuring proceedings - subject to the exceptions referred to in art. 156 sec. 3-4 R.L. - there are no numerus clausus proposals for restructuring liabilities. The legislator indicated in the act only exemplary types of restructuring of obligations. The arrangement proposals may indicate one or more restructuring methods. Thus, the legislator introduced, in the wake of the concept adopted in the Bankruptcy and Reorganization Law in 2003, a general competence pattern stemming from the construction of the autonomy of the will1. The open catalog of arrangement proposals fully meets the needs of modern legal transactions2. Restructuring law is a multitude of restructuring paths and a multitude of restructuring methods. Multidimensional^ is a sign of time. At present, one can speak of «named» arrangement proposals, that is, those listed in the Act and «unnamed arrangement proposals». Arrangement proposals, if the explicit provision does not state otherwise, may include any legal measure that will allow the most satisfactory satisfaction of the claim. The current legal status thus opens the way to even very sophisticated restructuring structures. By the way, it is worth emphasizing that, in accordance with art. 8 Entrepreneurs' Law Act of 6th March 2018 any debtor - entrepreneur may take any action, except for those prohibited by law. Therefore, an entrepreneur in restructuring may propose in the restructuring proceedings the conclusion of such an arrangement, which is not prohibited by law.
The arrangement proposals may indicate one (mono-proposals) or more ways of restructuring (multi-proposals). Therefore, the entitled person can submit homogeneous or
1 R. Adamus, Dopuszczalnosc podziatu wierzycieli na kategorie interesow w uktadzie cz^sciowym, Przegl^d Prawa Handlowego 2018, no 2, p. 35
2 A. Witosz, Restrukturyzacja spotek handlowych jako propozycje uktadowe w upadtosci z mozliwosci^ zawarcia uktadu spotek handlowych, Prawo Spotek 2003, No 11, p. 2., A. Lubicz-Posochowska, M. Kuznik, Swoboda ksztattowania propozycji uktadowych w post^powaniu upadtosciowym z mozliwosci^ zawarcia uktadu, in: Ustawowe ograniczenia swobody umow. Zagadnienia wybrane, B. Gnela, Warszawa 2010, p. 194, A. Lubicz-Posochowska, Uktad w post^powaniu upadtosciowym - jego materialne przestanki i charakter prawny, Katowice 2015, p. 66.
different arrangement proposals. In practice, the vast majority of entities present multi-proposals arrangement. Various arrangement proposals may be addressed to all creditors (in the case of a unitary agreement), and in the case of the division of creditors into groups (Article 161 R.L.) it is perfectly acceptable to submit different arrangement proposals for individual groups. When submitting various arrangement proposals, one should take into account the principle of equal treatment of creditors (pari passu principle), which will be discussed later in this report. It is permissible to apply various arrangement proposals to individual parts of the claim. However, various arrangement proposals cannot interfere with each other and lead to conflicting conclusions. The arrangement proposals should constitute a closed whole. The arrangement proposals (in connection with the existence of the so-called restructuring and liquidation arrangement) may have the character of restructuring and liquidation proposals.
The arrangement proposals may be independent or accessory, i.e. they may only occur in combination with other arrangement proposals. The arrangement proposals may be universal in the sense that they can be submitted in the restructuring proceedings of each entity (i.e. reducing the sum of debts). The arrangement proposals may also be specific, limited to a selected group of debtor (i.e. conversion of claims for shares or stocks may only take place in the case of a debtor being a company limited by shares or joint stock company).
Limits on the freedom of restructuring liabilities
The legislator as the principle accepts an open catalog of arrangement proposals as to their type (content), and additionally sec. 2 art. 154 R.L. does not limit the number of these proposals. The «freedom» of the arrangement proposals should be considered a positive phenomenon, even at the cost of hindering the arrangement's judicial review. In the absence of a closed list of arrangement proposals, the question arises about legal boundaries for arrangement proposals.
First of all, the boundaries for arrangement proposals are laid down in the provisions on restructuring proceedings. First of all, they will be art. 156 sec.. 3 and art. 160 sec. 1 R.L., which for some types of restructured receivables provide for a closed catalog of arrangement proposals. The boundaries for arrangement proposals in proceedings regarding the restructuring of obligations under an employment relationship are set out in a special provision of art. 163 sec.. 1 R.L. Further, it should be pointed out the general provisions on the nature and aims of restructuring proceedings. As a consequence, no arrangement proposals may be added to enhance the current
status of the debtor's liabilities. The arrangement proposals should also not violate the obligation of equal treatment of creditors resulting from the standard - pari passu principle (Article 162 R.L.). In setting the boundaries for the arrangement proposals, some help is provided by the provisions on the grounds for refusing approval of the agreement (Article 165 sec. 1 R.L.). The refusal to approve the arrangement is a sanction for non-compliance of the arrangement proposals with the law (lex perfecta). On the basis of the previously binding legal status, the view was expressed that the obviousness of non-performance of the arrangement cannot serve as a determinant of the content of the arrangement proposals. This premise concerns not the content of the arrangement and its implementation. In addition, the content of art. 165 sec. 1 R.L. indicates that the legislator distinguishes between the law and the actual circumstance in the form of impossibility of implementing the arrangement.
Secondly, legal boundaries for arrangement proposals should be seen in the text of Article 353 [1 ] Civil Code even if only the public claims were under restructuring. The manner of complying with public law liabilities subject to the arrangement is determined by the arrangement excluding the provisions of the Tax Ordinance or other public law provisions. The content of the arrangement should have the same boundaries as the content of the contract under private law. The content and purpose of the arrangement cannot be opposed to the law or the rules of social coexistence (i.e. in the case of excessive debt reduction). Compliance of the content and purpose of the arrangement proposals with the nature of the arrangement in restructurization proceedings can be derived from general provisions on the procedure. In the literature on the subject, P. Machnikowski pointed out that the provision of art. 353 [1] Civil Code is a competence standard3. Consequently, any act carried out outside the scope of competence specified in the Act (ie Article 353[1] Civil Code) is an action contrary to the Act, even if the exceeding of competences would consist in arranging a legal relationship in a manner contrary to the Act or the legal relationship.
The principle of freedom of contract refers to contractual legal relations. Therefore, thirdly, the limits of the arrangement proposals should be sought in the text of art. 58 Civil Code, in the context of arrangement proposals, which may sometimes be relations of property law (see Article 151 R.L.). The arrangement proposals should therefore be in accordance with the law and principles of social coexistence.
The limit of the number of restructuring proposals is basically open. The arrangement proposal can only be one. In practice, pragmatic considerations are a barrier to multiplying the number of proposals, because the more complex the system is in legal terms, the greater the legal risk involved.
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
3 P. Machnikowski, Swoboda umów wedtug art. 3531 k.c. Kon-
strukcja prawna, Warszawa 2005, p. 209
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 ex-
press 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)4. 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.
4 A. Lubicz - Posochowska, Uprzywilejowanie podmiotu fi-nansuj^cego uktad w prawie restrukturyzacyjnym w przypadku nieu-danej restrukturyzacji, in : Studia Ekonomiczne. Zeszyty Naukowe Uniwersytetu Ekonomicznego w Katowicach, Wspotczesne Finanse 2017, no 9, s. 17.
Another important issue in the field of the topic discussed here is the issue of the so-called the economic importance of the creditor5. 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.
Admissibility of differentiated arrangement proposals for groups of creditors
The creditors of the debtor being an entrepreneur are most often interested in the arrangement in various ways, and the claims come from various types of legal relationships. Often creditors can inherently be segregated into a group of i.e. permanent suppliers of raw materials, utilities suppliers, specific service, etc. The legislator has taken into account the above circumstances. For various interest groups it is possible - as already mentioned - to propose various arrangement proposals. According to art. 162 sec. 1 R.L. the conditions for restructuring the debtor's obligations should be the same for all creditors, and if voting on the arrangement takes place in groups of creditors, the same for creditors included in the same group, unless the creditor clearly agrees to less favorable conditions. The division into groups allows for a more flexible preparation of arrangement proposals, and thus for achieving the restructuring goal6. One creditor with different debts may be classified in
5 R. Adamus, M. Wadowski, Ekonomiczne i prawne aspekty restrukturyzacji przedsi^biorcy w post^powaniu upadtosciowym z mozliwosci^ zawarcia uktadu, Jurysta 2008r., no 1,p. 3
6 R. Stapinski, Wptyw ewolucji prawa upadtosciowego na swobod^ prowadzenia dziatalnosci gospodarczej, in: Tendencje reformatorskie
different categories of interests, even if it would have been multiplied in the system of per capita votes.
The decision on the division of creditors into groups is not open to appeal and does not depend on a possible opinion of the court supervisor or administrator regarding such division. The control of the method of dividing the creditors into groups may take place only at the stage of proceeding in the subject of approval of the arrangement. Undoubtedly, the decision will also be based on the calculation directly related to the rules of adopting the arrangement in the case of group voting. Criteria for the selection of creditors for particular interest categories do not have to be the same for each group. In other words, individual groups can be separated on the basis of individual criteria. The following set of criteria should be considered admissible: the amount of the principal claim receivable to the creditor, the type of the receivables due, the property collateral available to creditors. Theoretically, with «large» arrangements, with a large variety of creditors, these groups may be several or even a dozen or so. One can create a separate interest category with only one creditor. It is permissible to establish the so-called working groups (at the stage of formulating arrangement proposals) for claims that may be covered by the arrangement with the consent of the Creditors. There are no obstacles to certain interest groups being, in the final effect, «empty».
Postponement (grace period) of performance of obligations
The postponement (grace period) of the performance of the obligations may concern all or part of the claim. The moratorium on the implementation of arrangement obligations for the duration of the restructuring proceedings is in itself a deferment of the performance of obligations. However, deferment of the implementation of obligations refers to the phase of the implementation of the arrangement and not to the stage of its conclusion. In the case of deferring the performance of only part of the obligations, this should be clearly indicated in the wording of the arrangement proposals. In addition to the method of restructuring liabilities, arrangement proposals should indicate the date of their implementation. In accordance with the order of the Supreme Court of February 25th , 1997. II CKN 71/96, «defining in the arrangement proposals [in the arrangement procedure of 1934] the date by which the repayment of the debt is to be postponed, constitutes the essentialia negotii of these proposals». This view is also legally valid for current regulations. In practice, three methods are used for deferred payment structures. Payment is made on a given day (i.e. on the 14th day from the day when the court's decision regarding the acceptance of the arrangement becomes final) or «until» on the given day. Finally, payment can be determined «from» to «on» a given day. When stating the date of payment rigidly, it should also be considered an acceptable introduction to the text of the clause of the clause allowing for early repayment than provided for in the arrangement proposals. The payment term «to a specific date» is a frequently used in practice construction of the payment deadline (i.e. until the end of
w prawie handlowym - mi^dzy teori^ a praktyk^. J. Olszewski, War-szawa 2015, p. 171, C. Zalewski, Jak s^d moze pomoc przedsi^bi-orcy? Restrukturyzacja przedsi^biorstw w ramach procedur s^dowych, Fenix.Pl 2011, no 3, p. 4, A. Gtowacki, Era restrukturyzacji firm, Fe-nix.Pl 2013, no 1, p. 9, S. Morawska, Przedsi^biorca w obliczu upadtosci. Diagnoza i propozycje zmian systemu instytucjonalnego w Polsce, Warszawa 2013, p. 17., P Kupis, Dysfunkcje post^powari upadtosciowych, Biuletyn Polskiego Towarzystwa Ekonomicznego 2017, no 2, p. 35.
the quarter following the quarter in which the court's decision on the approval of the arrangement became final).
Deferment of the repayment date (grace period) should be specified in the wording of the arrangement proposals. The repayment date cannot result from the unspecified arbitrary will of the debtor. In other words, based on the content of the arrangement proposals, the creditors should know when the arrangement will be performed.
Grace period in repayment of public law liabilities.
According to art. 70 § 1 of the Tax Ordinance the tax liability expires after 5 years from the end of the calendar year in which the tax payment deadline has expired. The subsequent provisions of the Tax Ordinance introduce rules in which the running of the limitation period does not commence and the beginning of the period is suspended (Article 70 § 2, 6), the limitation period is interrupted (Article 70 § 3 and the first paragraph). According to art. 70 § 3 Tax Ordinance the course of the limitation period interrupts the declaration of bankruptcy. After the interruption of the limitation period, it runs again from the day following the day on which the decision on termination or discontinuation of the bankruptcy proceedings becomes valid. According to art. 70 § 3a . Tax Ordinance if the declaration of bankruptcy occurred before the commencement of the limitation period, the limitation period begins on the day following the day on which the decision on termination or discontinuation of the bankruptcy proceedings becomes valid. According to art. 70 § 6 Tax Ordinance the period of limitation of the tax liability does not commence, and it begins to be suspended, as of the day the claim is made that the court will determine the existence or non-existence of a legal or legal relationship. In the Tax Ordinance: it is not explicitly envisaged that the assumption of receivables by an arrangement under the Restructuring Law affects the running of the limitation period; however, it has not been pointed out that the Tax Code exclusively regulates the issue of limitation of tax liabilities.
So far, judicial decisions have repeatedly emphasized that, for example, the Bankruptcy and Reorganization Law from which the Restructuring Law germinated regulates issues related to tax obligations in a manner that is independent of tax law. The judgment of the Voivodship Administrative Court in Gliwice of 27 January 2010 remains valid as regards the sense that the order, rules and conditions for the implementation of tax receivables, including the default interest payable from the bankruptcy estate funds, constitute regulations included in the bankruptcy law and repairing. In the indicated scope, the provisions of Tax Ordinance do not apply. Similarly, the Supreme Administrative Court in Warsaw ruled in a judgment of 7 December 2005 that provisions of the Bankruptcy Law are lex specialis in relation to tax regulations, including the provisions of the Tax Ordinance. Taxpayer's tax obligations are subject to the arrangement on general terms (Article 150 R.L.). The system is subject to judicial approval (Article 164 R.L.). According to art. 166 sec. 1 R.L. the system binds creditors whose receivables according to the Act are covered by the arrangement, even if they have not been included in the list of claims.
The tax liability covered by the arrangement cannot, therefore, expire before the payment deadline specified in the text of the arrangement. What's more, pursuant to art. 170 sec. 3 R.L. enforcement or enforcement titles, including debts covered by the arrangement, lose their enforceability by operation of law. The legislator assumes that there may be only one enforcement title for one claim. As
a result of the arrangement and transformation of receivables in connection with this, a new writ of execution arises (Article 102 sec. 2 R.L.). Therefore, the provision of art. 70 § 4 Tax Ordinance gives the tax authority the basis for the running of the limitation period to be interrupted as a result of the enforcement measure, about which the taxpayer was notified on the basis of the enforcement title which creates the arrangement within the meaning of art. 102 R.L. After the interruption of the limitation period, it runs again from the day following the day on which the enforcement measure was applied. Finally, it should be pointed out that there are no reasons why tax liabilities should be treated differently in the arrangement than civil liabilities.
Spreading repayment into installments
The proposals for restructuring the debtor's liabilities, which are popular in practice, include the spreading of claims into installments . Frequently, the spreading of debt into installments is connected with their reduction and deferral of the payment date of the first installment. The arrangement proposals should indicate the number of installments, installment payment dates and installments. The amount of installments can be determined as a percentage and theoretically also in amount. Unless the arrangement provides otherwise for calculating deadlines for performance of obligations indicated in the system, the provisions of art. 110 Civil Code. The Act does not introduce maximum deadlines for deferring liabilities or their reduction. For example, it is not possible to exclude, for example, a repayment period of several years or, for example, a 90% reduction in liabilities. In practice, with respect to the former bankruptcy proceedings with the possibility of concluding the arrangement, the bankruptcy courts have validly approved agreements providing for a total of 11 years of recovery of debts. An interpretation hint can be found in the decision of the Court of Appeal in Lublin of 22th April 1999. According to this ruling, a civil law settlement, in which the repayment of amounts due for the seized large sum of money was spread into installments, payable within more than 50 years grossly violates the principles of social coexistence.
Further, the question arises whether the deadline for payment of claims according to the content of arrangement proposals may be earlier than the due date of a given claim. Prima facie, accelerating the payment of debts is difficult to consider as a restructuring of liabilities. However, if a non-due claim is in a group of other claims that are already due or is of small value, in other words a fragment in a group of restructured receivables, it may be payable earlier than stated in the original obligation, even if the payment deadline has been reserved in favor of the creditor . In some cases, the arrangement may accelerate the payment of claims against the original deadline. When determining a new deadline for the performance of obligations or the repayment date of individual installments, it is best to refer to it until the court's decision on the approval of the arrangement becomes final. Defining the date of payment with a calendar date, in some cases, could cause the arrangement to be performed before its valid approval.
The deadline for paying installments may be reserved in favor of the debtor: the debtor is not obliged to pay the installments before the due date but may make an earlier payment. The arrangement clause is acceptable, assum-
7 A. Witosz, Restrukturyzacja spotek handlowych jako propozycje uktadowe w upadtosci z mozliwosci^ zawarcia uktadu spotek handlowych, Prawo Spotek 2003, No 11, p. 2
ing that the entire principal is repaid, that if a pre-term repayment of 75% of the principal is made within a specified time interval, the outstanding amount of 25% of the principal amount of the claim will be canceled.
Decrease in liability
The decrease in the liability is based primarily on the construction of a debt relief within the meaning of art. 508 Civil Code. However, they are not identical. The arrangement proposals do not have to provide for obligatory reduction in the amount of debts. However, the reduction of the sum of debts (combined with spreading them into installments) is in practice the most popular arrangement proposals. Their obvious advantages are the simplicity of the structure and the beneficial effect on the debt level of the debtor in restructuring. The amount of depreciation may be indicated as a percentage or with a fraction. In the case of differences in the amount of receivables - which is a typical phenomenon in the economic turnover - the design of arrangement proposals should be ruled out by indicating the amount that will be deducted from the claim. In this case, the creditors would be treated unequally. However, if the creditors to whom the restructuring proposal is directed have equal receivables, their reduction should be allowed by the arrangement amount indicated in the wording of the proposal (expressed in a given currency). Unlike in the case of consumer bankruptcy, it would not be possible to write off all (total) debtor's liabilities.
It is acceptable to write off all interest on claims included in all groups and all costs of court proceedings (processes, security proceedings, non-litigious proceedings, etc.), court-administrative, execution etc. incurred until the date of initiation of restructuring proceedings. It is lawful to write off all interest on each claim. The redemption of interest will be nominally in a different amount, but in a manner proportional to the amount of each claim. This should be considered as an obvious consequence of the proportional calculation of interest on each claim against its amount (the product of the interest rate and the amount of claims). The period for which interest is accrued is a circumstance which does not affect the violation of the principle of equal treatment for creditors. Redemption of interest therefore remains allowed in the context of art. 162 sec. 1 R.L. This regularity can be applied to interest at a different interest rate. It may be stipulated that from the date of opening the restructuring proceeding no interest shall be claimed due from the debtor from claims assigned to all groups.
Converting receivables into shares or stocks
Converting receivables into shares basically refers to limited joint-stock partnership, limited liability company, joint-stock company being a debtor in restructuring proceedings8.
8 A. Witosz, Zatwierdzony uktad z konwersja wierzytelnosci na udziaty lub akcje a podwyzszenie kapitatu zaktadowego, Przegl^d Prawa Handlowego 2005., No 3, A. Witosz, Oferta publiczna w spotce publicznej a konwersja wierzytelnosci na akcje w zatwierdzonym uktadzie, Przegl^d Prawa Handlowego PPH 2007., No 1, A. Witosz, Konwersja wierzytelnosci na udziaty lub akcje w upadtosci z mozli-wosci^ zawarcia uktadu a chwila podwyzszenia kapitatu zaktadowego upadtej spotki, Przegl^d Prawa Handlowego 2007., No 5, A. Witosz, Wykonanie uktadu obejmuj^cego konwersja wierzytelnosci na akcje, gdy wierzytelnosci okazaty si? nieistniej^ce, Przegl^d Prawa Handlowego 2007., No 6, A. Witosz, Spotka w upadtosci uktadowej, War-szawa 2008, A. Witosz, Instytucja zmiany uktadu w swietle prac now-elizacyjnych nad prawem upadtosciowym i naprawczym, Przegl^d Prawa Handlowego z 2008, no 12, L. Gilicinski, P. Moskata, Konwersja wierzytelnosci na udziaty lub akcje w prawie re-strukturyzacyjnym, Monitor Prawa Bankowego 2015, no 12, p. 93; G. Godlewski, Konwersja wierzytelnosci na udziaty/akcje w toku
The conversion - which should be noted in the margin of this study - may take place on «silent shares» (Article 353 § 3 of the Code of Commercial Companies), which are privileged as to dividends but are without the right to vote. The issue of silent shares has this advantage for the current shareholder of the debtor, that it does not change the current distribution of voting power at the general meeting of shareholders. The conversion to silent shares may limit the risk of a hostile takeover of the debtor company by the creditors. However, if the debtor company had such a financial position that in the long run it would not be able to pay dividends - as prof, W. Popiotek claims - there would be doubts as to the admissibility of such arrangement proposals9.
The method of restructuring liabilities in the form of conversion of receivables into «shares or stocks» has a special character. The Voivodship Administrative Court in Gliwice in its judgment of February 1, 2012 aptly pointed out that «a third party debt which is a debt of a company in bankruptcy is transformed into shares of the company subject to taking over by the person in return for the company's receivables up to the amount specified by the arrangement and for the price (value) indicated there. On the basis of civil law, this kind of activity (conversion) is basically a deduction of monetary claims, referred to in art. 498 Civil Code. which is treated as payment in cash in accordance with art. 503 Civil Code. This means that the conversion of receivables (cash) into shares, provided for by the arrangement, constitutes the coverage of such shares in the Company with a cash contribution by its current creditors».
The question arises whether the exchange ratio of receivables for shares or stocks is arbitrary. In other words, it is a question about the limits of the autonomy of will in formulating the arrangement proposals. In the literature, prof. A. Witosz expressed the view that «he is deprived of an instrument ensuring verification of the contribution capacity and the value of the contribution made. For it is binding for him on the list of receivables approved by the judge - commissioner for the moment of registration»10. This view has wide acceptance in the restructuring practice. Nevertheless, the view is presented that the restructuring procedure cannot be used to artificially «inflate» the company's share capital in restructuring. The value of converted receivables should not be higher than the value of acquired shares or shares. In the literature, A. Nowacki presented far-reaching position: «Statutory valuation of the converted receivables as part of the capital increase in exchange for a contribution in kind prescribes that this provision is a special provision for the provisions requiring the valuation of non-cash contributions, subjecting this valuation auditor's examination (in the case of a joint-stock company) and those who are responsible for the overvaluation. Thus, these provisions will not apply in such a situation, despite the fact that it is an increase in exchange for non-cash contributions»11. The problem raised here is the issue of the registry court's cognition when examining non-
post^powania restrukturyzacyjnego, Doradca Restrukturyzacyjny 2017, no 9, p. 32.
9 W. Popiotek, Konwersja wierzytelnosci uktadowej na akcje nieme wyemitowane przez dtuznika, in: Z badan nad prawem prywatnym. Ksi^ga pami^tkowa dedykowana Profesorowi Andrzejowi Kochowi, A. Oleiniczak, M. Orlicki, J. Pokrzywniak, Poznan 2017, p. 391.
10 A. Witosz, Wykonanie uktadu obejmuj^cego konwersja wierzytelnosci na akcje, gdy wierzytelnosci okazaty si? nieistniej^ce, Przegl^d Prawa Handlowego 2007r., no 6, p. 6.
11 A. Nowacki, Konwersja dtugu na kapitat, Przegl^d Prawa Handlowego 2008, no 12, p. 43
cash contributions made to companies. According to art. 23 sec. 1 of the National Court Register Act, the registry court examines whether the documents attached to the application are compatible in terms of form and content with the law. However, in the case of conversion of claims for shares or stocks in connection with the arrangement, a special situation will take place. Testing the conformity of the arrangement - whose element of content is the conversion - in terms of compliance with the law exclusively belongs to the restructuring court. It should be acknowledged that the registration court, on general terms (Article 365 of the Code of Civil Procedure), should take into account the ruling of the restructuring court.
According to art. 167 R.L. if the arrangement provides for conversion of receivables into shares of a company being restructured, the legally approved arrangement replaces the activities related to the increase of the share capital and subscription of shares specified in the Commercial Companies Code. The arrangement along with the write-off of the final decision on the approval of the arrangement is the basis for the entry of the increase in the share capital of the company to the National Court Register.
The main difference regarding the share capital increase in a capital company under the provisions of the Commercial Companies Code and on the basis of the provisions of the Restructuring Law is connected with who makes such a decision. In the first case, the decision to increase the share capital is in the nature of an internal act. In the case of a limited liability company with the increase of the share capital is decided by way of a resolution of shareholders (Article 257 § 1 of the Code of Commercial Companies), unless the capital increase is effected under the current provisions of the articles of association. On the other hand, in the case of a joint-stock company, the share capital is decided on by way of a resolution of the general meeting of shareholders (Article 431 of the Code of Commercial Companies.), with the exception of the so-called target capital (article 444 of the Code of Commercial Companies). It should be noted that within the internal procedures of a capital company, the decision to increase the share capital is made by the «owner» factor. Also in the case of target capital, the management board of a joint-stock company operates within the limits of the statutory authorization. An internal decision to increase the share capital - a resolution - can be appealed to the court on general terms (Articles 249 and 252, as well as Articles 422 and 425 of the Code of Commercial Companies), except for the target capital. The situation is different when the company's share capital is increased by covering it with contractual debts. The decision on such increase of the share capital is external. It falls on the creditors' meeting. The company at the creditor's meeting as well as in the entire proceedings is represented by the management board (the so-called managerial factor), and the creditors actually decide about the increase of the share capital of the company. Therefore, it should be stated that the Code of Commercial Companies and Restructuring Law regulate separately the procedure for increasing the share capital. It is difficult to assume that the decision to increase the share capital in the restructuring proceedings, undertaken in special circumstances, outside the company would coincide with the intra-company resolution regarding the increase of the share capital, which could be challenged by the shareholders. As a consequence, to the extent to which the essence of the agreement is related to the increase of the company's share capital by way of external
decisions, the provisions of the Commercial Companies Code on the procedure of internal capital increase do not apply to such extent. One should defend the view that the essence of the agreement replaces the internal decision of shareholders or stockholders about the increase of capital and statements of creditors about taking up shares or stocks. The functions of the provisions of the Code of Commercial Companies which constitute premisses and the procedure of increasing the share capital replace the provisions on the arrangement. In the literature, prof. A. Witosz aptly notes that the insolvency law creates «an additional exception depriving the shareholders of the preemptive right, without the need for a resolution by the general meeting in this regard». According to the author, the view of the necessity of the general meeting of a resolution separate from the approved arrangement that excludes the pre-emptive right would not guarantee it, which would call into question the effectiveness of the conversion. In addition, the need to protect the company's creditors outweighs the need to protect the interests of its shareholders or shareholders.
It is permissible to address conversion of receivables into shares or stocks to stationes fisci and stationes muni-cipi. This means that municipalities, poviats, voivodships, universities, presidents of courts, etc. may, under the arrangement, receive shares or the participation of the debtor in restructuring. This view is recorded in the literature (it was expressed in relation to the previous legal status, including public finances): «The conversion of claims for shares or shares as part of the resolution procedure is also acceptable if the creditors are public sector entities within the meaning of the provisions of public finance. As a rule, public finance sector entities may not acquire or acquire shares or stocks in companies and buy bonds issued by entities other than the State Treasury or local government units (...). This ban does not apply to taking up or purchasing shares or purchasing bonds in order to satisfy claims, secure claims or secure performance of a public contract»12.
Final remarks
This study applies only to selected problems of arrangement proposals in Polish law. Special emphasis is required by the far-reaching freedom in formulating them. The consequence of this freedom is the issue of the limits of arrangement proposals. Liberal legal regulation makes the Polish legal system attractive to entrepreneurs.
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