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2019-04-doc2 pre-insolvency proceedings

The subject of a compulsory settlement outside of formal insolvency proceedings has been the focus of attention in Europe and several of its Member States, including the Netherlands, for quite some time. In the preface of his book ‘Pre-insolvency proceedings. A Normative foundation and Framework’ (OUP, 2019), the author, Nicolaes Tollenaar, signals this strong development in Europe with focusing on business rescue. Since the end of March 2019 (finalisation of the Restructuring Directive) we know for certain that Member States within two years have to fulfil the duty to introduce for a new generation of pre-insolvency restructuring proceedings with the aim of rescuing viable businesses and preventing formal insolvency proceedings or amend their existing rules. Tollenaar, a partner at Dutch law firm Resor and a familiar face at many international conferences, presents his view on the whole matter.

The book itself is a translation of his PhD, obtained the end of 2016 at the University of Groningen. It leaves out, however, the chapter on the Dutch bill regarding the Continuity of Enterprises II (‘WCO II’). It may have been the wish of its international publisher or the choice of the author itself, as that chapter then had to be bought into line with the WCO II-replacement bill, presented in September 2017, regarding Private Homologation Agreement for the Prevention of Bankruptcy (‘WHOA’). The whole Dutch legislative process which already lasts for seven years is awkward and sticky.

His study is well organised, with – after introduction of his work – chapters on the objective and the justification of insolvency law and pre-insolvency proceedings respectively, plan governance (proposing a ‘hybrid model’ with contractual and judicial elements) and initial observations on valuation and its accompanying terminology. It is rather apparent from the title of his book that the author also deals with US Chapter 11 (including the American Bankruptcy Institute 2014 proposals for change) and the UK’s Scheme of arrangement. This all leads to the centre piece of his book, Tollenaar’s Framework for a pre-Insolvency Plan Procedure.

In his opinion, justification for his ideas are three preconditions that a restructuring system should meet: (i) the debtor must be in a state of insolvency or pre-insolvency, (ii) a restructuring can only be imposed on creditors if a majority of them have agreed, or if the creditors who do not agree to it, have the option of receiving a cash amount equivalent to the amount they expected in the event of liquidation, and (iii) if the majority of creditors did not agree with another distribution, the added value that the restructuring aims to achieve (the ‘reorganization value’) is distributed according to the rank of the creditors. An agreement, laying this all down, must above all be fast, cheap and efficient, should respect these preconditions and must contain sufficient guarantees to protect the rights of creditors.

The author then elaborates on who can propose such an agreement, which also should serve the interests of the creditors and not per se as such the continuity of the debtor, the binding force of such an agreement, who may vote (also shareholders) and the organisation of classes. Disagreements between all involved as well as homologation of the agreement is in the hands of the court, specifically assessing the formal aspects of the conclusion of the agreement, for example regarding the question: has the decision-making been taken place properly and careful and have the relevant parties been involved in the process to come to an agreement.

Tollenaar’s framework reflect clearly the preconditions developed and to focus on speed and to achieve deal certainty. Judicial interference should be kept to a minimum, and there should not be an appeal against the approval decision. It includes the absence of an ex lege (automatic) stay and a limitation of the possibilities for the debtor’s counterparty to change, suspend or terminate obligations under existing agreements as a result of the plan, without there being any reasonable grounds for this. This refers to so-called ipso facto or change of control provisions, which can come into effect by offering a plan of an agreement or the further execution of it.

The book, the preface says, is based on a translation of his PhD. Going through it, however, I note that on several occasions the author has updated his research to November 2018. The book does not mention or discuss more recent post-2016 ideas, expressed for instance by prof. Stephan Madaus and myself, in the Instrument of the European Law Institute – Rescue of Business in Insolvency Law, available at, see also blog/2017-09-doc3-eli-business-rescue-report-published or those in the Codire report, although it seems fair to say that finalising his text and the publication of the latter report may have coincided. It may be the case, that these studies do not align with the approach fundamentally taken by the author, ie development of a framework based on the notion of the creditor’s collective enforcement rights, which evidently includes the non-homogenous group of creditors, including their priorities and pressures.

More important, I think, is the rather poor development of matters of contract law. The study, for instance, does not go into the rules that apply to negotiating and renegotiating (obligations in) a contract or these that apply to hardship or force majeur. Freedom of contract, or better: freedom to negotiate, is applied in all Member States, though freedom is not always fully free. For instance, the Italian Civil Code provides that during contract negotiations parties have a mutual duty of good faith conduct and in the Netherlands such a duty may follow from case law. In other countries there may be a duty for the parties to negotiate, e.g. based on a rule regarding ‘hardship’ or: force majeur (in France since 2016). Such kind of rules may also follow from soft law, such as the Principles for European Contract Law or the UNIDROIT Principles of International Commercial Contracts. Now it seems fair (further study should be made) to presume, that financial distress and/or operating in circumstances close to insolvency generally will not be regarded as ‘hardship’. Such a risk is to be borne by the party affected by it, the debtor. However, in an individual contractual context any ‘plan’ rules may indirectly influence the background within which (re)negotiations take place.

A second issue in this regard is that a ‘plan’ is an agreement or a contract of a special type, namely a multi-party contract. In such a case, may a debtor individually agree with one creditor or a group of them? What is the interrelationship between the earlier contract (between one creditor and the debtor) and the obligation to perform in good faith in concluding a new contract? Is there for instance a duty to hear the other party and/or for this party to (at least) take part in restructuring negotiations? What are the consequences for such a multiparty contract as a ‘plan’ for the rules on good faith or misrepresentation? It seems evident, however, that a multi-party plan will naturally be influenced by the restructuring and insolvency laws to which the debtor may become subject. Parties will negotiate restructuring terms ‘… in the shadow of insolvency law’. This all means, as Madaus and I suggested in the study mentioned, that parties will negotiate their position against the backdrop of the possibility of these insolvency proceedings being opened and with regard to their interests and their entitlements in them. In these contracts they may ‘borrow’ tools available in formal proceedings, such as an inter-creditor agreement or an ad-hoc standstill agreement, because as such, formal restructuring and insolvency proceedings, in as far as they are efficient and promote the interests involved with the continuation of viable businesses, can promote restructuring within a contractual setting. To conclude matters for now: in the near future I think national rules for contracts will certainly be influenced by the provisions in the EU Restructuring Directive. It’s unfortunate that the study discussed here missed the chance to further develop this area.

Back to the book. Tollenaar has a clear, as well as a tenacious style of writing, with which he develops, consistent with his basic notions, his own framework re pre-insolvency proceedings. He, I know, generally agrees with the new EU Restructuring Directive’s restructuring procedure. However, he has voiced its unaligned characteristics and basic flaws. European politicians (as far as they read academic studies