​The Ministry of Business, Innovation and Employment (MBIE) is proposing law change after the Court of Appeal ruled that KiwiSaver funds are beyond the reach of the Official Assignee.

The effect of the ruling is to provide a higher level of protection for KiwiSaver balances than for other forms of retirement savings.

MBIE is seeking feedback on a range of options to create a uniform policy approach to the use of retirement savings in bankruptcy.

Submissions close on 30 September 2016. We encourage you to make a submission.

Background

Resumen: Mecanismo preconcursal para empresas en situación de insolvencia y que permite evitar la tramitación de concursos sin incurrir en responsabilidades los administradores societarios. Así mismo, instrumento necesario para conseguir el Beneficio de Exoneración de Pasivos Insatisfechos en caso de deudores personas físicas“.

Key Point

The court adjourned a bankruptcy hearing on the basis that a Spanish court sanctioned liquidation plan for a group of companies in which the debtor had an interest might release value for creditors.

The Facts

The Law 9/2015 includes the following novelties:

1.   In Regard to the Insolvency Agreement

Law 9/2015 presents a series of novelties regarding the insolvency agreement, such as:

The Supreme Court rules in a recent decision over different bankruptcy incidents. The first relates to a work contract to supply materials in which a penalty clause for late work is established, and the ability to execute the works under the guarantee provided in the contract if the contractor may not execute them. Having a delay in delivery of the work and having entrusted to another company the repair works, the owner claimed the payment of the amounts and compensation with the guarantee held.

The new amendments carried out in the BankruptcyProceedings Act by virtue of the Royal Decree 4/2014,dated March 7, aims to introduce a viable restructuringof corporate debt, trying to streamline BankruptcyProceedings and prevailing primacy of will.

The recently-approved Royal Decree Law 4/2014 (RDL), dated March 7 and published March 8 in the Official State Gazette (BOE), has the main goal of addressing measures to ensure the feasible restructuring of corporate debt, encouraging a relief of financial burdens for companies which, despite high debt levels, are still feasible from an operational viewpoint.

On March 7, the Spanish government reformed its bankruptcy law to encourage companies to restructure their debt and avoid liquidation. The decree is one part of an ongoing reform program intended to strengthen and stabilize the Spanish financial sector.  The reforms provide stronger incentives for lenders to accept write-offs, maturity extensions, and debt forgiveness for struggling companies. The new rules also reduce the majority of creditors needed to vote for a restructuring.

Yes it can, according to the most recent judgments of the Spanish high courts. The question was addressed in several Judgments issued by the High Court (HC) of Castilla-La Mancha (amongst others, the Judgment issued on 11 February 2013, in Appeal no. 320/2012, and the Judgment issued on 12 February 2013 on Appeal no. 321/2012) and by the High Court (HC) of Madrid in its Judgment no. 41/2012 of 21 January.

The Supreme Court of Spain has recognized it its Judgment dated September 5th, 2012, the lack of consent in a work contract on which one of the parties applied for the bankruptcy proceedings 10 days after such contract was entered by both parties.

The parties entered into a contract for execution of work by virtue of which the company that few days later applied for the insolvency proceedings, was committed to carry out the works of a building under construction.

Once the bankruptcy proceeding was started, each party issued a claim within the insolvency proceeding.