Anmerkungen:
In: International Corporate Rescue 2015, p. 115 et seq., Chase Cambria Company Publishing Ltd., United Kingdom, ISSN: 1572-4638
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments December 15, 2014 erstellt
Beschreibung:
As a means of restructuring, the German Insolvency Code (Insolvenzord-nung, hereinafter InsO) contains the so-called insolvency plan proceeding. Since March 2012 the insolvency plan proceeding can be combined with the insolvency protection proceeding under debtors own administration (Schutzschirmverfahren, s. 270b InsO). The main purpose of this procedure is to allow companies to remain to a higher extent self-determined and to have more impact concerning the insolvency strategy that shall be applied. In a protective shield proceeding with a maximum length of three months during which the debtor is protected from foreclosure from creditors, the debtor and insolvency administrator develop an insolvency plan, describing the methods that shall be applied, and submit it to the insolvency court. The latter shall then docket a discussion and voting meeting with all parties involved. For approval of the plan, it must hold a majority of each group.After the German insolvency plan proceeding has experienced a reform in 2012 by the implementation of the Law for the Further Facilitation of the Restructuring of Enterprises (Gesetz zur weiteren Erleichterung der Sani-erung von Unternehmen – hereinafter ESUG), it has enjoyed great popularity, especially when it comes to rather complex insolvency cases. However, the reform also opened up the possibility to affect the corporate structure of the company (ss. 217 sentence 2, 225a InsO), and it has therefore raised the risks for the shareholders who haven't had majorities within the votings for the insolvency plan (compare esp. s. 238a (1) sentence 2 InsO – see below).Until few weeks ago, cases that illustrate the possibilities of the newly reformed insolvency plan proceedings and the grade of acceptance within the jurisdiction, have not existed. Neither have experiences of how to defend one's interest against those and – on the other hand – to push on the insolvency plan proceedings in spite of a strenuous opposition.First decisions in second and third instance have now been made so that it is easier to give recommendations about what (foreign) shareholders/creditors are able to do and what they should keep an eye on