Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 24

Article 4 states that Member States shall ensure that debtors have access to a preventive restructuring framework that enables them to restructure, with a view to preventing insolvency and ensuring their viability and without prejudice to other solutions for avoiding insolvency31. “Restructuring” is defined in Article 2(1) as meaning measures that aim at restructuring the debtor’s business and this includes changing the composition, conditions or structure of a debtor’s assets and liabilities or any other part of the debtor’s capital structure, such as sales of assets or parts of the business and, where so provided under national law, the sale of the business as a going concern, as well as any necessary operational changes, or a combination of those elements. Unlike the original proposal which referred to a sale of parts of the business, the final version makes it clear that a sale of the entirety of the business is permitted.

The Directive has a debtor-in-possession norm i.e. the general principle is that the debtor is be left in control of its assets and the day-to-day operation of the business, though there are certain qualifications32. In particular, there are certain circumstances where Member States shall require the mandatory appointment of the restructuring practitioner in every case33. These are: (i) where a general stay of individual enforcement action is granted by the relevant authorities who consider such an appointment necessary to safeguard the interests of the parties; (ii) where cross-class cram-down is envisaged; or (iii) where the debtor or a majority of creditors requests the appointment.

There is provision for a stay of individual enforcement actions. The stay is intended to give debtors a respite on claims from creditors and to facilitate negotiations on a restructuring plan34. There may be little prospect of debtor rehabilitation if creditors deprive the debtor of assets that may be essential to the carrying on of the debtor’s new or rehabilitated business. It appears that the stay is not intended to be automatic; operating as a matter of course once restructuring proceedings are opened or there is an application to open restructuring proceedings. The initial period of the stay is confined to four months35 though Member States may permit its extension for a total maximum period of no more than 12 months36.

Under Article 7 of the Directive, the commencement of the stay suspends the opening of insolvency proceedings and any obligation on the part of directors to file for the opening of insolvency proceedings. Creditors will also be suspended from initiating insolvency proceedings. Member States may however specify that such suspension will not operate where the debtor is cash flow insolvent i.e. unable to pay its debts as they fall due37. The relevant authorities may however, decide to keep the stay in place if it is not in the general interest of creditors to open insolvency proceedings.

Article 6 of the Directive refers to a “stay of individual enforcement actions to support the negotiations of a restructuring plan in a preventive restructuring framework”. The stay does not necessarily encompass a stay on all legal actions against the debtor, but there is nothing to prevent Member States from enacting such a wide ranging stay that would include a stay of individual enforcement actions.

The decision of the European Court in LBI hf v Kepler Capital Markets SA38 recognises a distinction between individual enforcement actions and lawsuits more generally39.As examples of enforcement actions, one might highlight actions taken for the realisation of assets or the enforcement of collateral. On the other hand, a simple breach of contract action that determine the existence, validity, content or amount of a claim exemplifies a lawsuit more generally. A collateral enforcement action taking away assets from the debtor that are needed for the debtor’s business clearly impairs, in a very direct fashion, the debtor’s ability to carry on business. Nevertheless, having to defend a potentially complicated legal action such as a breach of contract claim also consumes the time of the debtor’s employees and representatives that might more usefully be spent on preservation of the business and business recovery. It seems sensible for Member States to legislate for a stay that is much broader that that suggested by the relatively limited language of Article 6.

Secured creditors may be adversely affected; for instance, by seeing the value of their collateral decrease during the period of the stay, but with no viable business emerging from the restructuring process. Effectively, the debtor is gambling unsuccessfully on business resurrection and the debtor is footing the bill for the rescue/restructuring attempt. Recital 37 states bluntly that the directive “does not cover provisions on compensation or guarantees for creditors of which the collateral is likely to decrease in value during the stay”. This statement is to be contrasted with the UNCITRAL Guide on Insolvency which suggests that while the stay lasts, a secured creditor is entitled to protection of the value of the asset in which it has a security interest40.

In the US, the statutory safeguards are very similar to that in the UNCITRAL Guide. Section 362(d) US Bankruptcy Code provides that a “party in interest” may apply to have the stay lifted for cause, including the lack of adequate protection of an “interest in property”. There are many legislative and judicial statements to the effect that secured creditors should not be deprived of their bargain41. The property in question may be necessary for use by the company in the reorganisation process, but the interest of secured creditors and other property rights holders should be protected during this period. In particular, holders of proprietary rights should be protected against the risk that their property may depreciate in value. A secured creditor’s property interest is not adequately protected if the security is depreciating during the term of the stay.

Section 361 provides 3 examples of ways in which adequate protection may be given: (1) periodic cash payments; (2) additional or replacement security interests; (3) other relief amounting to the indubitable equivalent of the person’s interest in the property42. The terminology of “indubitable equivalence” comes from Re Muriel Holding Corp43 where the judge said with reference to a proposed restructuring plan:

“Interest is indeed the common measure of the difference [between payment now and payment 10 years hence], but a creditor who fears the safety of his principal will scarcely be content with that; he wishes to get his money or at least the property. We see no reason to suppose that the statute was intended to deprive him of that in the interest of junior holders, unless by a substitute of the most indubitable equivalence”.

In the Directive, everything is subsumed within the concept of “unfair prejudice”. Instead of seeking compensation for a decline in the value, a secured creditor could apply for the stay to be lifted44. In fact, Article 6 does not really distinguish between secured and unsecured creditors. The only claims that are specially singled out for distinctive treatment are claims from employees which are not subject to the stay as a general rule – though Member States may subject them to the stay if they are guaranteed a similar level of protection in a preventive restructuring framework that they have outside the framework45.Across the board, creditors, and not just secured creditors, may be excluded from the stay46, or from a continuation of the stay47, if this would cause them unfair prejudice. They can also apply to a judicial or administrative authority to have the stay lifted on grounds of “unfair prejudice” though Member States may limit this facility to situations where the affected creditors did not have the opportunity to be heard before the stay came into force or was extended48. Member States may also limit the opportunity to apply for a lifting of the stay to situations where the initial 4 month maximum period has expired49.

It may be that the concept of “unfair prejudice” is being asked to do too much and that some of its workload can reduced by more particularised guidance.

If assets are not needed for an effective restructuring, then it seems that a stay should not be granted or continued under the Directive. Article 6(1) refers to the refusal of a stay where such a stay is not necessary50. Article 6(9)(a) instances the lifting of the stay where it no longer fulfils the “objective of supporting the negotiations on a restructuring plan”, such as where it “becomes apparent that a proportion of creditors which, under national law, could prevent the adoption of the restructuring plan do not support the continuation of the negotiations”.

The US Bankruptcy Code takes a somewhat different approach though the end results are likely to be largely the same. According to s 362 where the stay relates to acts against property, relief may be granted where (a) the debtor does not have any equity remaining in the property and (b) the property is not necessary for an effective reorganisation. In the Inwoods case51, the US Supreme Court used this provision to speed up the restructuring process52. The Supreme Court said that once the creditor establishes that the debtor has no equity in the collateral, the debtor has the burden of establishing that the collateral is necessary to an effective reorganisation. This requires not merely a showing that if there is conceivably to be an effective restructuring, this property will be needed for it, but also that the property is essential for an effective restructuring that is in prospect. This means that there must be a reasonable possibility of a successful restructuring within a reasonable time53.

If the debtor fails to show either that the property is necessary or that a successful reorganisation is a realistic possibility, then the secured creditor should be given permission to enforce the security and lift the stay. In virtually all Chapter 11 cases, the debtor needs to retain and use its property to improve the prospects of a successful restructuring. It is usually self-evident that the debtor needs the use of the property but, nevertheless, the feasibility of a successful restructuring may be hotly contested. The court in a US Chapter 11 context will require actual evidence on restructuring prospects rather than merely a statement of the debtor’s hopes and dreams for a better future54. A secured creditor may be able to prevail on the feasibility issue if it can establish that the debtor will never be able to confirm a restructuring plan since it will not be able to obtain the required consents. Likewise, a creditor in a European restructuring context should be able to get a stay lifted if it can convince a relevant judicial or administrative authority that a majority of creditors whose consent to the restructuring plan is vital do not support continuation of the negotiations55.

The consensus view in the EU seems to be that to allow recovery procedures by creditors to operate without restraint could frustrate the overall socially desirable goal of rescue. Since going concern value may be a lot more that breakup value, restructuring proceedings are designed to keep a business alive so that this additional value can be captured. These legislative goals will be compromised however, if creditors are able to seize assets that are essential to the carrying on of the debtor’s business. Consequently, we have a stay on actions by creditor to collect debts or repossess property that is in the ailing debtor’s possession. The restructuring strategy seems to be founded upon a utilitarian premise that the interests of a few may need to suffer in the service of the needs of the many. This premise is transformed into a legal mechanism through the stay56.

Property rights are sacrificed to a degree but, at the same time, protected to a degree. There are counter-balancing measures in place to protect those who may be affected by the stay. In the US, there is an unambiguous statutory statement that secured creditors are entitled to receive “adequate protection” of their proprietary rights. US law has a tight, clearly defined. requirement of “adequate protection”. Nevertheless, relief from the stay is available where the property is not needed for a successful reorganisation

In the European Restructuring Directive context, there is nothing specific about compensating secured creditors for a decline in the value of the secured property during the stay period and while, no doubt, this would be factored into the equation in an appropriate case, it is not a decisive factor. Clearly, one’s views on the purposes underlying business restructuring law will shape one’s views of the statutory stay and whether the holders of proprietary rights should be compensated for the delay occasioned by the stay in enforcing their property rights. A strict supporter of the principle that pre-insolvency entitlement should be upheld absolutely would answer that holders of proprietary rights should undoubtedly be compensated in full57. Supporters of more inclusive theories would respond that the question must depend on a complex of different factors including the length of the stay, the immediacy of the prospect for business rehabilitation, the necessity for use of the property and the impact on other creditors. This, broadly speaking, is the EU position given the protection afforded employee rights, but, at the same time, there is also protection for financial markets transactions including close out netting agreements.