(ORDONNANCE Nº 2014-326 DU 12 MARS 2014 ET DÉCRET NO 2014-736 DU 30 JUIN 2014)
La nouvelle ordonnance nº 2014-326 du 12 mars 2014 modifie avec environ 120 articles essentiellement insérés dans le Code de Commerce, le régime des entreprises en difficulté. Un décret d’application publié le 30 juin 2014 a précisé les détails de ce texte.
Nous exposons ici quelques points principaux de la réforme (liste non exhaustive) :
On 27 June 2014, the High Court of Justice of England and Wales sanctioned the solvent scheme of arrangement made by J.K. Buckenham Limited and its Scheme Creditors pursuant to Part 26 of the Companies Act 2006 which was voted on and approved by the Scheme Creditors during the meeting held on 4 June 2014. A copy of the Order sanctioning the Scheme was delivered to the Registrar of Companies on 30 June 2014, and the Scheme became effective on that date.
Judgment of the Supreme Court of Justice of 20-03-2014 Standardization of Jurisprudence – Insolvency Proceedings – Right of Retention
On 16 April 2014 we assisted J.K. Buckenham Limited (JKB) in successfully obtaining the court’s leave to convene a meeting of its creditors, a meeting at which JKB will ask such creditors to consider and to vote on a scheme of arrangement under the Companies Act 2006 (the Scheme). JKB is promoting the Scheme as part of a wider solution to end its broking obligations, release trapped cash, relinquish its FCA permissions, and ultimately liquidate.
THE SCHEME
Spanish Royal Decree-Law 4/2014, passed on March 7 2014, has considerably changed the rules for the court-sanctioning of so-called Spanish schemes of arrangement. Amongst those changes, the reform has lowered the majorities required to achieve a Spanish scheme. Currently, a majority of at least 51% of the financial liabilities held by all creditors at the time of the refinancing agreement (acuerdo de refinanciación) approval, will suffice to request the insolvency judge to sanction the agreement, so it is considered ringfenced and protected from any challenge for rescission.
For insolvency purposes, the concept of “group” is defined in article 42 of the Spanish Commercial Code, which refers only to groups subject to control that have the legal obligation to consolidate their accounts, while excluding horizontal or co-ordinated groups.3
Assignment of a credit with recourse transfers ownership of the credit to the assignee when the transfer is approved and allows the assignee to request that it is separated from the assignor’s insolvency assets.
In both rulings, the Supreme Court stated the effects of assignment of a credit with recourse on the assignor’s declaration of insolvency.
Royal decree-law 4/2014, on urgent measures for refinancing and restructuring corporate debt: amends the Insolvency Act and the exemption on mandatory takeover bids for rescue operations, and extends the special regime for calculating losses due tue impairment
On March 18, 2014, the Bank of Spain gave credit institutions consistent criteria to apply the provisions of Circular 4/2004 to restructuring transactions resulting from the refinancing agreements regulated under the Insolvency Act, complying with the stipulations of Additional Provision One of Royal Decree Law 4/2014, which assigned the drafting of those criteria to the Bank of Spain.
Madrid Commercial Court No. 6 order of October 7, 2013: acquirer of a production unit subrogated in employment liabilities because the shareholders and directors had established the company specifically to acquire the insolvent company ("Marco Aldany Case")
The court did not rule out liability for employment obligations because the partners - directors of the insolvent company wished to acquire the production unit through a company created specifically to acquire it.