As from 1 May 2018, the Belgian insolvency landscape will look different following the entry into force of the brand new Insolvency Law (Book XX of the Economic Law Code). In the wake of the electronic debt reporting system that came into force on 1 April 2017, the filing of bankruptcy must also be made electronically in the Central Solvency Register (RegSol) as of 1 May 2018.

Vanaf 1 mei 2018 ziet het Belgische insolventielandschap er anders uit ingevolge de inwerkingtreding van het gloednieuwe insolventierecht (Boek XX in het Wetboek Economisch Recht). In navolging van de elektronische aangifte van schuldvordering sinds 1 april 2017, dient vanaf 1 mei 2018 ook de aangifte van faillissement elektronisch te gebeuren in het Centraal Register Solvabiliteit (Regsol).

L’entrée en vigueur de la toute nouvelle loi sur l’insolvabilité modifiera le paysage du droit de l’insolvabilité belge dès à partir du 1er mai 2018. Le 1er avril 2017 entrait en vigueur le système de déclaration de créance par voie électronique. A présent, entrera en vigueur, dès ce 1er mai 2018, la demande de faillite par voie électronique dans le Registre Central de la Solvabilité.

Sellers and suppliers of movable assets can deal with problems caused by poorly-paying customers through a retention of title clause. This clause makes it contractually possible to stipulate that ownership of a certain good does not transfer until the third party acquirer has paid the full price.

It is interesting to note that the new Law on Pledges has created a better legal framework for the retention of title clause, putting any creditor - assuming a retention of title clause has been included - in a stronger position.

Section 546(e) of the Bankruptcy Code shields certain transfers involving settlement payments and other payments in connection with securities contracts (for example, payment for stock) made to certain financial intermediaries, such as banks, from avoidance as a fraudulent conveyance or preferential transfer. In recent years, several circuit courts interpreted 546(e) as applying to a transfer that flows through a financial intermediary, even if the ultimate recipient of the transfer would not qualify for the protection of 546(e).

The law of 11 August 2017 that adds Book XX "Insolvency of Enterprises" into the Code of Economic Law enters into force on 1 May 2018.

As we already stated in our previous contributions about the reform of the insolvency law, this law modifies and regroups the Bankruptcy law and the Law of 31 January 2009 on the Continuity of Enterprises.

1. The notion "Enterprise" replaces the notion "Merchant"

On October 20, 2017, the United States Court of Appeals for the Second Circuit issued a decision which, among other things,[1] affirmed the lower courts’ holding that certain noteholders were not entitled to payment of a make-whole premium. The Second Circuit held that the make-whole premium only was due in the case of an optional redemption, and not in the case of an acceleration brought about by a bankruptcy filing.

On October 20, 2017, the United States Court of Appeals for the Second Circuit issued an important decision regarding the manner in which interest must be calculated to satisfy the cramdown requirements in a chapter 11 case.[1] The Second Circuit sided with Momentive’s senior noteholders and found that “take back” paper issued pursuant to a chapter 11 plan should bear a market rate of interest when the market rate can be ascerta

On October 3, 2017, Bankruptcy Judge Laurie Selber Silverstein of the United States Bankruptcy Court for the District of Delaware issued a decision holding that the Bankruptcy Court had constitutional authority to approve third-party releases in a final order confirming a plan of reorganization.

On 13 July 2017 parliament voted to introduce book XX "Insolvency of Companies" in the Code of Economic Law.

In a previous article we already wrote that the insolvency law would be adapted to current national and international regulations and case law and would be incorporated into the Code of Economic Law as a coherent whole.

In this way, solvency procedures must be more transparent, efficient and effective.