National Report for the Netherlands

The first principles of insolvency law applicable in a sovereign Dutch nation can be traced back to the Ordinance of Antwerp of 28 January 1515. As a predecessor of insolvency legislation elsewhere in Europe, the Ordinance contained core principles and features still deemed fundamental to a modern insolvency law system (e.g. the collective nature of the insolvency proceedings, the appointment of an insolvency administrator, the prohibition against concealing property of the debtor, the application of the pari passu principle and the existence of preferential debts).

National Report for Israel

10.1093/oso/9780199668366.003.0010 ◽

2013 ◽

Author(s):

David Hahn

Keyword(s):

The Other ◽

Insolvency Law ◽

Corporate Reorganization ◽

National Report ◽

The Subject ◽

Israel’s insolvency law is trifurcated and is comprised of the Bankruptcy Ordinance, the Companies Ordinance, and the Companies Act. The first of these regulates insolvency proceedings pertaining to individuals, and the other two regulate proceedings pertaining to corporations. The Companies Ordinance deals with corporate liquidation and receivership, and the Companies Act handles corporate reorganization. While certain provisions appear in all three Acts, other provisions appear only in one or two of them. The subject of executory contracts is one of the main matters with respect to which the three Acts differ. The Bankruptcy Ordinance (Pkudat Pshitat Ha-Regel) and the Companies Ordinance (Pkudat Ha-Havarot) address the issue of executory contracts within the context of onerous property. As a result, this legislation covers only the ability of the trustee to release the estate from burdensome, unprofitable contracts.

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.

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.

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 ◽

Secured Creditors

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 ◽

Secured Creditors

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).

National Report for Poland

10.1093/oso/9780199668366.003.0013 ◽

2013 ◽

Author(s):

Marek Porzycki ◽

Anna Rachwał

Keyword(s):

Significant Extent ◽

Insolvency Law ◽

National Report ◽

The treatment of contracts under Polish insolvency law varies depending on the type of insolvency proceedings. Legal relationships between the debtor and other parties are modified to a significant extent in winding-up bankruptcy (‘upadłość likwidacyjna’ or ‘upadłość obejmująca likwidację majątku upadłego’), while most contracts remain unchanged by reorganization bankruptcy (‘upadłość układowa’ or ‘upadłość z możliwością zawarcia układu’). In rarely used rehabilitation proceedings (‘postępowanie naprawcze’), contracts are almost unaffected except for a general ban on performance of obligations. Even though in reorganization bankruptcy there are two distinct possibilities of the debtor remaining in possession of the estate or of the estate being managed by an administrator, this subdivision does not result in any further differences in treatment of contracts.

National Report for France

10.1093/oso/9780199668366.003.0008 ◽

2013 ◽

Author(s):

Gilles Cuniberti ◽

Isabelle Rueda

Keyword(s):

Insolvency Law ◽

National Report ◽

The Law ◽

Insolvency Proceedings ◽

Judicial Interpretations

France’s first specific provisions on the treatment of executory contracts in insolvency proceedings were adopted in 1967. Thereafter, French insolvency law was modified in 1985, 1994, 2005, and 2008, with all but the 2005 reform modifying the executory contracts provisions. The goal of such modifications was often to clarify the law, incorporating judicial interpretations into the statutory provisions.

National Report for Germany

10.1093/oso/9780199668366.003.0009 ◽

2013 ◽

Author(s):

Christoph G Paulus ◽

Matthias Berberich

Keyword(s):

Economic Burden ◽

Insolvency Law ◽

Recovery Rates ◽

National Report ◽

Insolvency proceedings mainly pursue the objectives of optimal creditor satisfaction by maximizing recovery rates as well as—quite equally ranking—business rescue. Since contracts concluded by the debtor prior to the opening of insolvency proceedings may constitute either an economic burden or a benefit for the estate, it is generally accepted that the debtor should adhere only to those that are beneficial, and seek relief from detrimental pre-commencement contracts—provided certain conditions are fulfilled. German insolvency law therefore allows the insolvency administrator to draw a line and to choose which pre-commencement contracts will be performed.

9 National Report for France

10.1093/law/9780198727293.003.0009 ◽

2016 ◽

Author(s):

Cuniberti Gilles ◽

Rueda Isabelle

Keyword(s):

Legal Systems ◽

Insolvency Law ◽

National Report ◽

Participation Rights ◽

The Law ◽

The Right ◽

This chapter discusses the law on creditor claims in France. French insolvency law has traditionally been unfriendly to creditors benefitting from contractual security interests. Unlike most other legal systems, insolvency claims secured by contractual security interests over certain assets of the debtor do not enjoy the right to be satisfied from the secured assets in priority to all other claims. The treatment of creditor claims is also similar among various insolvency proceedings. In reorganization proceedings (sauvegarde or redressement judiciaire), post-commencement claims are more common and substantial, whereas in liquidation proceedings (liquidation judiciaire), such claims are often non-existent. 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.

4 National Report for Brazil

10.1093/law/9780198727293.003.0004 ◽

2016 ◽

Author(s):

Sztajn Rachel ◽

Salles de Toledo Paulo Fernando Campos ◽

Nimer Moreira da Silva Fernando César

Keyword(s):

Federal Law ◽

Insolvency Law ◽

Legal Procedure ◽

National Report ◽

Time Period ◽

Participation Rights ◽

The Law ◽

This chapter discusses the law on creditor claims in Brazil. The legal treatment of creditor claims is similar to that in other worldwide systems. The new Brazilian Insolvency Law (Federal Law No 11.101/2005) and the former Decree-Law empower the insolvency judge to appoint a judicial administrator and define the time period in which existing debts will be recognized and included in the legal procedure. Because the firm’s assets represent the guarantee of payment of debts, the creditors’ and debtor’s legal positions are connected in a sort of unitary bundle. Of note in the new Law is the reduction of priority of tax and wages claims, leaving more value available for distribution to other creditors. 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.