Consequences of failure to obtain the required majority of votes in the vote on the arrangement in restructuring proceedings
The primary objective of each restructuring proceeding is for the creditors to accept the arrangement. Voting on the arrangement is therefore a key stage in any restructuring. The voting is preceded by the development of arrangement proposals and the preparation of a restructuring plan by a restructuring advisor. However, creditors undoubtedly play the most important role in voting. It is primarily them who decide on the possible success of this phase of repairing the company. For this reason, it is important that the arrangement proposals are based on reliable data, allowing for the preparation of a realistic forecast of profits and losses during the arrangement period. The debtor must effectively convince his creditors to a new vision of business. He is supported in this by a restructuring advisor who prepares an opinion on the feasibility of implementing the proposed arrangement.
STATISTICS ON HANDS CONCLUDED
The Ministry of Justice’s statistics on restructuring proceedings show that convincing creditors to accept specific debt repayment proposals is not an easy task. The analysis of the data for the first half of 2022 leads to the conclusion that as many as 647 cases were registered in the courts conducted on the basis of the provisions on proceedings for approval of an arrangement (the vast majority of which concerned simplified restructuring proceedings introduced during the COVID-19 pandemic). After the changes introduced in December 2021, it remains the most popular restructuring procedure. The statistics also show that only 49% of cases were cases in which an arrangement was accepted and an application for approval of the arrangement was subsequently submitted (the statistics refer to it as “approval of the arrangement”, “refusal of approval” or “discontinuation”). The remaining 51% of cases are proceedings in which creditors voted against the arrangement. An announcement was made in Monitor Sądowy i Gospodarczy (in simplified restructuring proceedings) or in KRZ (in proceedings for approval of the arrangement) in order to obtain protection against enforcement without attempting to vote on the arrangement, an application was returned or the matter was dealt with in another way.
RULES OF ACCEPTANCE OF THE AGREEMENT
From December 1, 2021, the restructuring law provides for uniform rules for adopting an arrangement in out-of-court proceedings (proceedings for approval of the arrangement) and court proceedings (accelerated arrangement proceedings, arrangement proceedings and sanation proceedings). According to Art. 119 section 1 r.r. the arrangement is accepted when the majority of voting creditors (over 50% of those who cast valid votes) vote in favor of its acceptance, having in total at least two-thirds of the total claims of the voting creditors (creditors who voted in favor of accepting the arrangement have over 2/3 of the capital due to creditors who cast valid votes).
In the case of voting in groups, the arrangement is accepted if in each group the majority of voting creditors from this group, having a total of at least two-thirds of the total claims due to voting creditors from this group, vote for it. It is important, however, that even if the arrangement proposals are not accepted in one of the groups, there is still a chance of accepting the arrangement. This will happen if the creditors who voted for the arrangement have a total of two-thirds of the total claims of the voting creditors, and the creditors from the groups that voted against the arrangement will be satisfied under the arrangement to a degree no less favorable than in the case of bankruptcy proceedings.
When calculating the voting results, only active creditors are taken into account, i.e. those who cast a valid vote (for or against the arrangement). So far, in proceedings for approval of an arrangement (including simplified restructuring proceedings), the debtor had to obtain an appropriate majority in relation to the creditors entitled to vote (i.e. regardless of whether all of them decided to comment on the debtor’s proposal). To sum up, the current rules are conducive to the debtor in obtaining a positive decision for him.
FAILURE TO ACCEPT THE ARRANGEMENT – COURT PROCEEDINGS
If an entrepreneur undergoing court restructuring (under accelerated arrangement proceedings, arrangement proceedings, sanation proceedings) fails to achieve the required majority, the court is obliged to discontinue the restructuring proceedings. It is important that in the case of court proceedings, the legislator did not provide for the possibility of re-voting the arrangement in the event of failure (it is no longer possible to change the arrangement proposals to such that could be approved by creditors). Therefore, it is important to remember the general rule: one procedure – one vote.
Failure to accept the agreement is stated by the order of the judge-commissioner. The order of the judge-commissioner is not appealable. If the entrepreneur does not agree with the results of the vote, in particular with the assessment of the validity of the vote or with the findings regarding the exclusion of the right to vote on the arrangement – he must wait for the decision of the restructuring court. The judge-commissioner transfers the files to the court in order to issue a decision discontinuing the restructuring proceedings (pursuant to Art. 165(5) of the Labor Code or Art. 325(1)(3) of the Labor Code). Within two weeks of the delivery of the decision together with the justification, the debtor may file a complaint against the decision to discontinue the restructuring proceedings. The court of second instance may then recognize the unchallengeable decision of the judge-commissioner (pursuant to Art. 209 of the Code of Civil Procedure based on Art. 380 in conjunction with Art. 397 § 2 sentence 1 of the Code of Civil Procedure).
If the decision to discontinue the proceedings was issued in camera, the entrepreneur under restructuring does not have to precede the complaint with a request for a justification. Where the decision was made at a hearing, such a request is necessary. The complaint is submitted to the district court through the restructuring court and is subject to a fee of PLN 200 (Article 75 point 3 of the Act on court costs in civil cases; if an application for justification has been submitted, the fee will be reduced by the fee already paid).
NO ACCEPTANCE OF THE ARRANGEMENT – PROCEDURE FOR APPROVAL OF THE ARRANGEMENT
Lack of acceptance of the arrangement is confirmed by the supervisor of the arrangement on the basis of the voting. The Act does not provide for the obligation to provide this information in a specific form (as opposed to the declaration of acceptance of the arrangement, which is the main element of the arrangement supervisor’s report regulated in Article 220 of the BPL). Due to the fact that the arrangement supervisor maintains the files of the proceedings for approval of the arrangement in the ICT system that supports court proceedings (from 1 December 2021), it is reasonable to state this fact at least in the form of an out-of-court order of the authority. Pursuant to the Regulation of the Minister of Justice of November 15, 2021 on the manner and procedure for keeping and making available files and a set of documents in proceedings for approval of the arrangement, when the arrangement has not been accepted, the case conducted by the arrangement supervisor should be marked as completed in the case. This is to serve information purposes and to organize the course of the proceedings.
The debtor should remember that he is entitled to submit an application to the court for approval of the arrangement. He may submit such a request also when he does not agree with the arrangement supervisor’s position on non-acceptance of the arrangement. Then the restructuring court will assess the validity of the vote.
Failure to accept the arrangement in restructuring proceedings generally leads to the termination of these proceedings. Therefore, it is important for the debtor proposing the arrangement to make the necessary effort to convince his creditors that, despite the threat of insolvency, he is able to meet at least part of his obligations. It is mainly in the hands of creditors that the fate of each restructuring proceeding rests.