Date of creditors’ meeting in order to vote on the composition agreement and delivery of correspondence to foreign entities
Since the date of entry into force of the Restructuring Law, more and more entities have been taking advantage of the possibility to restructure their debt. A significant number of them carry out only restructuring in the scope of due liabilities, and not in the scope of owned assets.
SETTING THE DATE OF THE CREDITORS’ MEETING
This results from the fact that they want to reach an agreement with creditors in a relatively short period of time, conclude an arrangement and then implement it. It follows from the provisions of the Act that a judge-commissioner, after submitting a list of receivables to the file or its approval (depending on the type of bankruptcy proceedings conducted) and submitting a restructuring plan, will immediately set the date of the creditors’ meeting. The mere setting of a date by the judge can and is immediate, but the setting of the date of the creditors’ meeting is a completely different matter. When setting the date of the creditors’ meeting, the judge-commissioner must take into account not only the issue of the free date of the courtroom, but also the issue of delivering notices to creditors about the convening of the creditors’ meeting in order to vote on the arrangement, in particular if the debtor has foreign creditors.
REGULATION OF FOREIGN CREDITORS’ NOTIFICATIONS
The provisions of the restructuring law regulate the issues of making an announcement in Monitor Sądowy i Gospodarczy on convening the creditors’ meeting (art. 105 p.r.). However, there are no regulations concerning the delivery of arrangement proposals, voting cards and instructions to foreign creditors.
Therefore, when determining how to deliver documents required by the restructuring law to foreign creditors, the Judge-commissioner is supported by the provisions of the Code of Civil Procedure (Article 209 p.r.). According to the regulation in force in civil proceedings, the Court in the field of service in the EU makes service on foreign entities in accordance with Regulation No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and repealing Council Regulation (EC) No. 1348/2000 (hereinafter referred to as the “Regulation”). As regards entities whose registered office is outside the EU under bilateral or multilateral agreements, the most important of which is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters of 15 November 1965. (hereinafter ‘the Convention’).
MANDATORY TRANSLATION OF NOTIFICATIONS TO BE SERVED
The rules on service of documents have a clear impact on the subsequent appointment of a creditors’ meeting to vote on the agreement. This is because the Regulation requires that the correspondence sent be translated into an official language or a language which the addressee understands. On the other hand, the Convention does not impose such an obligation, but a translation may be requested by the central authority which transmits the judicial document. It should also be stressed that the obligation to translate a given document may also arise from the bilateral or multilateral agreements mentioned above.
Furthermore, the rules on the service of correspondence between States may provide for a method of service other than the usual postal item. This will also affect the later date of the creditors’ meeting.
How can the Court be assisted in setting an immediate date for the creditors’ meeting to vote on the composition agreement?
One of the possible solutions is to contact the creditor with a request to appoint a proxy in Poland who will represent him/her during the restructuring proceedings. It will also be a good idea to submit to the Court translated voting cards, instructions and proposals for composition agreements, as well as to contact the Court as to what actions we can support it in connection with the service.
