The new Slovakian preventive restructuring framework aims to provide companies with a viable toolkit to deal with financial distress at an early stage and to counter the fact that the majority of Slovak companies enter an insolvency process having been insolvent for more than a year.
Main characteristics
The Slovak parliament recently passed a new law – The Temporary Protection of Distressed Undertakings Before Creditors – which came into effect on 1 January 2021. It replaces the current temporary protection (moratorium) adopted at the outset of the COVID-19 crisis.
The new regulation will only be granted where a majority of the unrelated creditors involved agree with the stay. This marks a departure from the COVID-19 moratorium, which could be easily accessed by all debtors impacted by the coronavirus pandemic.
Since the outbreak of COVID-19 in Europe, the Slovak Parliament has adopted a series of new laws aiming predominantly to support employment, to provide financial aid and tax relief (particularly to SMEs) and to preserve and regulate legal enforcement.
The insolvency law related measures include mainly:
Debtor's filing
The statutory time limit for debtors to file for bankruptcy due to over-indebtedness (balance sheet test) that occurred between 12 March and 30 April 2020 has been prolonged from 30 to 60 days (and is expected to be prolonged further).
Law No. 47/2010/QH12 on credit institutions has been amended pursuant to Law No. 17/2017/QH14 (“Amended Law”) passed by the National Assembly. The Amended Law came into effect on 15 January 2018.
The Amended Law provides grounds for special control by the State Bank of Vietnam (“SBV”) against underperforming credit institutions which:
have failed to maintain liquidity requirements;
have accumulated losses exceeding 50% of the charter capital and reserve funds as recorded in the latest audited financial statements;
Background
New rules strengthen the position of individual creditors and weaken the concept of insolvency proceedings as a means of final collective satisfaction of creditors. Taylor Wessing in Bratislava, as an advisor to the Ministry of Justice, has been actively involved in the creation of this new regime.
New provisions
Summary
Bankruptcy in Vietnam applies to enterprises (including foreign invested enterprises), co operatives and co operative unions (hereafter collectively referred to as enterprises). Unlike certain countries, this does not apply to individuals.
Bankruptcy Law
Bankruptcy procedures are governed by the Law on Bankruptcy No. 51/2014/QH13 which came into effect on 1 January 2015:
Summary
The Existing System
Despite its introduction to the Slovak legal system in 2006, current laws on debt relief within the framework of bankruptcy of natural persons have not been a viable solution.
Basing the legal institute of debt relief on a two-step procedure:
- starting with bankruptcy (i.e. liquidation of (all) the debtor’s assets)
- then followed by a three-year trial period at the end of which the court releases a resolution on the possibility of personal bankruptcy
has in fact hindered debtors from filing.
Two major Slovakian construction companies, both heavily dependent on large state contracts, have recently been restructured. Both of these cases have proven that Slovakian entrepreneurs, even those who live off of public money, perceive and utilise the current regulation of the restructuring procedure as a “legally safe way” to restart their businesses and get rid of a large portion of creditors. This option is viable also in a moment, when the only solution clearly is a bankruptcy petition.
Slovakia is getting ready for a major amendment of the Commercial Code, which will also amend the Slovak Act on Bankruptcy and Restructuring. Significant changes are expected in the corporate as well as bankruptcy and restructuring law sector which is underperforming and provides insufficient protection to creditors, despite many previous attempts to improve the regulation of this area.