3 National Report for Belgium

This chapter discusses the law on creditor claims in Belgium. Legislators have limited the power of secured creditors to take individual enforcement actions with regard to their collateral, notwithstanding the opening of insolvency proceedings. For bankruptcy proceedings, the Bankruptcy Act of 8 August 1997 (BA) introduced a ‘cooling-off period’, imposing a temporary stay on individual enforcement actions by secured creditors. For judicial reorganization proceedings, the 31 January 2009 Act on the Continuity of Enterprises (BCA) imposes a general stay on enforcement actions, which also affects secured and preferential creditors. The remainder of the chapter looks into insolvency claims, administration claims, and non-enforceable claims in turn. Each part covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

10 National Report for Germany

10.1093/law/9780198727293.003.0010 ◽

2016 ◽

Author(s):

Paulus Christoph G ◽

Berberich Matthias

Keyword(s):

Insolvency Law ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

This chapter discusses the law on creditor claims in Germany. German insolvency law distinguishes between several types of creditors in insolvency proceedings and treats them differently with regard to priority of claims, enforcement, modes of realization, and costs. The doctrinal approach of the German Insolvency Code is not so much a categorization of claims, but rather it takes a view on the creditors. German insolvency law draws a rough distinction between four creditor groups: secured creditors; general insolvency creditors; subordinated creditors; and administration creditors. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

12 National Report for the Netherlands

10.1093/law/9780198727293.003.0012 ◽

2016 ◽

Author(s):

Faber Dennis ◽

Vermunt Niels

Keyword(s):

The Netherlands ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

This chapter discusses the law on creditor claims in the Netherlands. It deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings. In essence, holders of insolvency claims (‘insolvency creditors’) are entitled to the liquidation proceeds of the debtor’s insolvency estate after the full discharge of the administration claims. Insolvency creditors (except secured creditors) can only pursue payment by submitting their claims for admission in the proceedings. Administration claims have to be satisfied in priority to insolvency claims and need not be submitted in the claims verification procedure. Holders of such claims (‘administration creditors’) can take recourse against assets comprised in the insolvency estate. Holders of non-enforceable claims can only seek recourse after the insolvency proceedings are terminated (provided that the debtor continues to exist).

17 National Report for Spain

10.1093/law/9780198727293.003.0017 ◽

2016 ◽

Author(s):

Tirado Ignacio

Keyword(s):

Civil Code ◽

Regulatory Regime ◽

Insolvency Law ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

This chapter discusses the law on creditor claims in Spain. Spain’s current insolvency regulatory regime resulted from the reorganization and modernization that took place with the passing of the 2003 Insolvency Law (Ley Concursal). The ranking of claims under the Insolvency Law coexists with a ranking of claims for execution in individual proceedings, regulated in the Civil Code. The Spanish system has been generally respectful of the pre-insolvency entitlements of secured creditors; provides priority for post-commencement financing; and includes different tiers of priorities for certain categories of creditors. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

2 National Report for Austria

10.1093/law/9780198727293.003.0002 ◽

2016 ◽

Author(s):

Duursma-Kepplinger Henriette ◽

Englmair Christof

Keyword(s):

Bankruptcy Law ◽

Federal Law ◽

Insolvency Law ◽

Comprehensive Review ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

Compensation Law

This chapter discusses the law on creditor claims in Austria. ‘Modern’ bankruptcy laws—the Compensation Law (Ausgleichsordnung, AO) and the Bankruptcy Act (Konkursordnung, KO)—were first introduced by the imperial decree of 10 December 1914, 337 RGBl. Since then, these have undergone numerous amendments. Austrian insolvency law was subjected to the most comprehensive review and reform with insolvency amendment 2010, Federal Law Gazette 2010/29, which merged bankruptcy law and compensation law into a single procedural structure. The Compensation Law was repealed, while the Bankruptcy Act was renamed the Insolvency Law. The rest of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; classification and ranking of claims; and voting and participation rights in insolvency proceedings.

16 National Report for the Republic of Korea (South Korea)

10.1093/law/9780198727293.003.0016 ◽

2016 ◽

Cited By ~ 2

Author(s):

Oh Soogeun ◽

Kim Kyungjin

Keyword(s):

South Korea ◽

Republic Of Korea ◽

National Report ◽

Participation Rights ◽

The Law ◽

The Republic ◽

This chapter discusses the law on creditor claims in South Korea. Under South Korea’s Debtor Rehabilitation and Bankruptcy Act (DRBA), insolvency claims are classified into secured, unsecured, and administration claims. Unsecured claims are divided according to their level of priority. As administration claims can be paid on maturity without being impaired in the insolvency proceedings, a principal concern is determining whether or not a certain claim is an administration claim. The 2009 amendment to the DRBA gave new loans borrowed under the court’s permission a kind of priority to be paid before other common benefit claims in cases where a company’s property is insufficient to pay all common benefit claims. The chapter then deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

13 National Report for Poland

10.1093/law/9780198727293.003.0013 ◽

2016 ◽

Author(s):

Porzycki Marek ◽

Rachwał Anna

Keyword(s):

Law Reform ◽

Bankruptcy Law ◽

Insolvency Law ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

Final Text

This chapter discusses the law on creditor claims in Poland, where a comprehensive insolvency law reform is ongoing. In May 2015, Parliament adopted the final text of the Restructuring Law (RL). Due to enter into force on 1 January 2016, it will cover four restructuring proceedings: arrangement approval; fast arrangement; arrangement; and reorganization. Their common aim will be rescuing the debtor’s enterprise via an arrangement adopted by a majority of creditors. They will apply in case of both threatened and actual insolvency, and replace the current reorganization bankruptcy and rarely used rehabilitation proceedings. The existing Bankruptcy and Rehabilitation Law will have its provisions on reorganization bankruptcy and rehabilitation proceedings repealed, and be renamed ‘Bankruptcy Law’. The chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

6 National Report for the People’s Republic of China

10.1093/law/9780198727293.003.0006 ◽

2016 ◽

Author(s):

Weiguo Wang

Keyword(s):

People’S Republic Of China ◽

Bankruptcy Law ◽

People's Republic Of China ◽

Republic Of China ◽

National Report ◽

Participation Rights ◽

The Law ◽

Rights And Interests ◽

This chapter discusses the law on creditor claims in China. The rights and interests of creditors are protected by the 2006 Enterprise Bankruptcy Law (EBL). The term ‘insolvency claims’ is not officially used to refer to the claims against the insolvent debtor which are eligible for insolvency proceedings. In the text of the EBL, they are simply referred to as ‘claims’ (ie, creditors’ rights or obligatory rights). Only when bankruptcy liquidation proceedings start following the court’s ruling of bankruptcy declaration do the claims become known as ‘bankruptcy claims’. The rest of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section is concerned with: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

7 National Report for the Czech Republic

10.1093/law/9780198727293.003.0007 ◽

2016 ◽

Cited By ~ 1

Author(s):

Richter Tomáš

Keyword(s):

Czech Republic ◽

The Czech Republic ◽

National Report ◽

Participation Rights ◽

Standard Manner ◽

The Law ◽

This chapter discusses the law on creditor claims in the Czech Republic. The Czech Insolvency Act appears to deal with creditors’ claims in a fairly standard manner, making pre-insolvency claims subject to the process of claims submission and verification, and dealing with claims arising during the proceedings as administration claims. But the Insolvency Act actually confers upon creditors the power to decide on numerous of issues in the course of particular proceedings, eg, whether the debtor should be liquidated or reorganized. Many of the difficulties surrounding the Act’s rules on the submission and verification of claims are thus related to the question of who gets to decide on the course of the insolvency proceedings. The chapter then examines insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

5 National Report for Canada

10.1093/law/9780198727293.003.0005 ◽

2016 ◽

Author(s):

Patrick Shea E

Keyword(s):

National Report ◽

Participation Rights ◽

The Law ◽

This chapter discusses the law on creditor claims in Canada. The general approach is that all claims to which the debtor is subject when the reorganization or liquidation commences should be ‘brought into’ the proceeding, and creditors should receive a distribution based on their relative entitlement vis-à-vis the debtor. While the treatment of claims is generally consistent among the various insolvency proceedings, the proceedings are not identical, particularly regarding the priority of claims and procedures for establishing them. For example, the Bankruptcy and Insolvency Act provides a statutory claims procedure for both liquidations (bankruptcies) and reorganizations (proposals), but that procedure is not applicable in reorganization proceedings under the Companies’ Creditors Arrangement Act (CCAA) or in the distribution of the proceeds realized by a receiver. In reorganization proceedings under the CCAA, and where a receiver is appointed, the court determines the procedure to establish claims. The chapter then deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

14 National Report for the Russian Federation

10.1093/law/9780198727293.003.0014 ◽

2016 ◽

Cited By ~ 1

Author(s):

Trukhtanov Alexander

Keyword(s):

Russian Federation ◽

Bankruptcy Law ◽

Contractual Arrangements ◽

National Report ◽

Participation Rights ◽

The Russian Federation ◽

The Law ◽

This chapter discusses the law on creditor claims in Russia. Russia’s principal bankruptcy law is the Federal Insolvency (Bankruptcy) Law 2002. The law sets out a comprehensive regime of submission, priority, and ranking of claims. It is almost entirely mandatory and leaves very little to be governed by pre-insolvency contractual arrangements. Its policies are generally favourable to creditors and are aimed at achieving pari passu distribution, including restriction of administration claims and giving unsecured creditors access to part of the proceeds of sale of security assets. The remainder of the chapter is concerned with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.