Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 26

Chapter 4 of the Directive –Articles 17 and 18– protects new and interim financing, and other restructuring related transactions, from civil, administrative or criminal liability and from challenge under transactional avoidance law on the ground that they are detrimental to the general body of creditors. The provisions are clearly intended to promote restructuring efforts and encourage the supply of new finance to a financially distressed debtor. New finance may be critical to the survival of the debtor and the Directive strives to remove any obstacles in the path of such new finance108.

Article 18 provides a general measure of protection for restructuring related transactions whereas Article 17 is a more specific provision safeguarding interim and new financing. “Interim financing” is defined as financing that is “reasonably and immediately necessary” to ensure continuation of the debtor’s business or to preserve/enhance the value of that business pending confirmation of a restructuring plan109 while “new financing” is defined as financing necessary for the implementation of a restructuring plan and included in the plan110. Member States are required to ensure that both new and interim financing are adequately encouraged and protected; in particular, against the risk of being declared void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures. The protection does not apply, however, if the transactions have been carried out fraudulently or in bad faith111.

It is unlikely that Articles 17 and 18 will bring out major changes in the domestic laws of Member States. Many domestic insolvency laws have anti-avoidance mechanisms that invalidate or set aside advantage gaining by creditors in the period prior to the commencement of formal insolvency proceedings. Such laws will vary in terms of precise details on matters such as the length of the vulnerability period, the types of transaction that are vulnerable to challenge and the defences that may be available to a counterparty. Nevertheless, it is unlikely that “new finance” transactions would, in practice, be impeachable under a transactional avoidance regime except perhaps to the extent that the new financing agreement has features such as cross-collateralisation clauses. The latter clauses typically provide that any security given in return for the new advance will also typically secure existing unsecured loans or “rollover” such loans into the new advance. Normally, in a new or interim finance situation, there is a reciprocal flow of benefits and obligations from creditor to debtor since the creditor is providing new finance and, in return, gets the benefit of the debtor’s promise plus possibly security and/or the benefit of a guarantee from a third party that reinforces the debtor’s commitment to repay the advance. Transactional avoidance provisions generally strike only at “incongruent” transactions where the creditor is receiving disproportionate benefits, such as the benefit of cross-collateralisation112.

Articles 17 and 18 do not go further and create anything in the nature of a legislative regime for super-priority new financing along the lines of section 364 of the US Bankruptcy Code113. Member States it seems are free to give these credit providers priority over the claims of ordinary, unsecured creditors and even existing secured creditors but they are not required to provide such priority114. On the other hand, the US regime in section 364 lays down a series of detailed prescriptions.