On October 21, 2008, the China Insurance Regulatory Commission of the PRC (CIRC) issued the Circular on Implementing the Administrative Provisions on the Solvency of Insurance Companies which went into effect on the same day. The Administrative Provisions on the Solvency of Insurance Companies, which the Circular intends to implement, replaced the 2003 Provisions for the Administration of the Insurance Company Solvency Quota and Regulatory Indices (the 2003 Provisions). The 2003 Provisions did not prioritize solvency issues.

On December 29, 2008, the State Administration for Taxation (SAT) and the Ministry of Finance (MOF) jointly promulgated the Circular on Several Deed Tax Policies Concerning Enterprise Reorganization and Restructuring, (Cai Shui (2008) 175, Circular 175). Circular 175 took effect on January 1, 2009, and will be effective through December 31, 2011.  

New tax rules relating to the tax treatment of certain corporate restructuring transactions are expected to be finalized soon by the PRC Ministry of Finance (“MOF”) and the State Administration of Taxation (“SAT”).

Many multinational corporations ("MNCs") are either restructuring or actively considering restructuring their China operations, given the current economic conditions and forecasts. Restructuring efforts often include consolidating legal entities, business units, and operations; closing down operations and factories; and workforce reductions. Implementing such restructuring efforts often raises complicated legal issues, many of which require careful analysis in light of recent legislation and policy considerations.

Consolidating Operations

Throughout the global economic meltdown, the number of bankruptcy cases in China has risen considerably. To shed light on bankruptcy proceedings and stabilize the domestic economy, the Supreme People’s Court of the PRC issued Opinions on Several Issues Regarding the Proper Adjudication of Enterprise Bankruptcy Cases to Provide a Judicial Safeguard for Maintaining Order in the Market Economy on June 12, 2009. The Opinions direct courts at all levels to properly apply the Enterprise Bankruptcy Law (EBL) to assist insolvent enterprises, maintain market order, and stabilize the economy.

The turmoil within the Croatian retail company Agrokor, which owns Mercator, the largest Slovenian retailer, caused a significant stir in the Slovenian public, with the suppliers and especially in politics. The response of the Slovenian Government – with which additional measures for the protection of Mercator as a company of systemic importance are being established is also the Act on Conditions of Appointment of Associate Member of the Management Board in the Companies of Systemic Importance for the Republic of Slovenia. The Act was adopted by the Parliament on the 25th of April, 2017.

Reasoning behind the changes

In the two years that the "new" bankruptcy regime – the Bankruptcy Act of September 2015 (Stečajni zakon; the "BA") – has been in place, the number of pre-bankruptcy procedures initiated in Croatia has plummeted to only 273, with 58 restructuring plans being accepted. By comparison, under the previous pre-bankruptcy regime from 2012 to 2015, 8,262 pre-bankruptcy procedures were initiated, with 2,224 restructuring plans being reached.

On 2 May 2018 the Croatian Constitutional Court ("Constitutional Court") upheld the Law on Extraordinary Administration Procedure for Companies of Systematic Importance for Croatia, better known as "Lex Agrokor".

In Judge Glenn’s recent lengthy decision recognizing and enforcing a restructuring plan in the chapter 15 proceedings of In re Agrokor1, a Croatian company in Croatian insolvency proceedings, he highlighted that the concept of comity – respect for rulings in other countries – remains an important U.S.

In October 2018 we have elaborated on the controversial “Act on Nullity of Loans with an International Element Concluded in the Republic of Croatia”, which was passed by the Croatian Parliament and entered into force on 29 July 2017 (“Act”).

The Act has been adopted via an urgent parliamentary procedure, without undergoing expert consultation procedure that usually precedes the procedure of passing the law with such a sensitive effect as it would be the interference with the acquired rights as a consequence of retroactive application of its provisions.