Austrian Bankruptcy Law

Transcription

1 Austrian Bankruptcy Law Univ.- Prof. Dr. Walter Buchegger

2 Terms What is bankruptcy law? What is insolvency law? Difference between enforcement proceedings and bankruptcy law

3 Enforcement - Bankruptcy Enforcement creditors acting individually effects certain seizable goods principle of priority among the acting creditors Bankruptcy automatic effect of proceeding for all creditors in bankruptcy effects all seizable goods of the debtor by law principle of equality among the creditors in bankruptcy (dividend)

4 Nature of Bankruptcy Law Bankruptcy Law consists of: special rules of private law rules of bankruptcy procedure Special rules in bankruptcy law are an addition to Private Law, especially contract law tort law law of unjust enrichment

5 Status of being bankrupt (insolvent) Inability to pay (Art 66 IO) Overindebtedness (Art 67 IO) No legal definition of bankruptcy/insolvency

6 Players Bankruptcy Court (Art 63 et sequ., 182 IO) Trustee Administrator in reorganization proceeding Creditors Committee Creditors Assembly plus Organizations protecting the interests of the creditors

7 Creditors creditors with claims for recovery from the Estate secured/preferred creditors creditors to the estate creditors entitled to set-off creditors with claims in bankruptcy provable claims creditors with subordinated claims

8 Proceeding Insolvency Proceeding Bankruptcy involuntary proceeding voluntary proceeding without reorganization plan Reorganization Proceeding always a voluntary proceeding with a reorganization plan to be filed by the debtor together with his/her motion

9 Proceeding Insolvency Proceeding Bankruptcy Reorganization Proceeding requirement: plan for reorganization plan for reorganization liquidation debtor in possession trustee administrating

10 U.S. Bankruptcy Code U.S. Bankruptcy Code is Section 11 of the U.S.C. (U.S. Code) What is comparable to the U.S. Chapter 11 proceeding?

11 Proceeding Insolvency Proceeding Bankruptcy Reorganization Proceeding requirement: plan for reorganization plan for reorganization liquidation debtor in possession trustee administrating

12 Proceeding Insolvency Proceeding Bankruptcy Chapter 11 fresh start for the bankrupt company plan for reorganization liquidation debtor in possession

13 U.S. Bankruptcy Code U.S. Bankruptcy Code is Section 11 of the U.S.C. (U. S. Code) What is comparable to the U.S. Chapter 11 proceeding? What is comparable to the U.S. Chapter 7 proceeding?

14 Proceeding Insolvency Proceeding Bankruptcy Chapter 11 fresh start for the bankrupt company plan for reorganization liquidation debtor in possession

15 Proceeding Insolvency Proceeding Bankruptcy Chapter 11 voluntary fresh start for the bankrupt no DIP, no Chapter 11 Chapter 7 debtor in possession (DIP)

16 Insolvency Register Announcement by way of edict

17 Substantive Bankruptcy Law

18 Automatic stay Automatic stay: bars creditors from collecting is not an injunction issued by the courts like in U.S. law becomes effective by law once the proceeding is opened bars creditors in bankruptcy and subordinates creditors from litigation against the estate in bankruptcy bars these creditors from enforcement proceedings against the estate bars these creditors from enforcement proceedings against the debtor within the last 60 days before bankruptcy proceeding is opened

19 Estate Administration by Trustee Trustee administrating the Estate in Bankruptcy in most of the cases in bankruptcy proceedings in reorganization proceedings where the debtor s offer equals or succeeds 20% but will not equal 30% for all creditors in bankruptcy

20 Estate Administration by Trustee Debtor Debtor s Legal Acts concerning the Estate administrated by a Trustee are legally void for all creditors in bankruptcy Will a payment to the debtor during bankruptcy proceedings have effect of fulfillment?

21 Debtor in Possession (DIP) Debtor in Possession is the exeption from the rule of administration by a trustee in reorganization proceedings where the debtor s offer equals or succeeds 30% for all creditors in bankruptcy in bankruptcy proceedings of individuals

22 Estate Estate (Art. 2 par. 2 IO) all seizable goods at the point in time the bankruptcy order is issued all seizable goods or income acquired during the bankruptcy proceeding Will the Estate the Trustee controls at the commencement of the proceeding equal to the legal definition given in Art. 2 par. 2 IO? there are several reasons why not

23 Estate claims for recovery from the estate controlled estate goods not in control of trustee

24 Estate goods seized by secured creditors goods generally liable to: creditors to the estate creditors entitled to set-off creditors with claims in bankruptcy (in rare cases creditors with subordinated claims)

25 Executory Contracts Executory Contracts contracts not or not entirely fulfilled neither by debtor nor contractor when bankruptcy proceeding is opened Trustee s Right of Choice either to fulfill and demand fulfillment or to back out of the contract: any damages inflicted to the contractor are just claims in bankruptcy

26 Trustee s Avoidance Powers Prebankruptcy Transfers to the detriment of the Creditors/the Estate transfer is perfection rule Trustee s Right to litigate trustee claims back any financial benefit obtained by a third person before the opening of bankruptcy proceedings

27 Bankruptcy Proceeding

28 Bankruptcy Proceeding 1 (1st creditor assembly) asset determination 1st creditor assembly hearing for proving debts 1 BP BO filing claims ib hearing for trustee s report 2

29 Bankruptcy Proceeding 2 1st creditor assembly hearing for proving debts hearing for trustee s report 1 liquidation 2 debtor files a reorganization plan

30 Bankruptcy Proceeding 3a Liquidation hearing first distributions liquidation process hearing on report of accounting formal plan for distribution hearing and distribution order distribution court order terminating bankruptcy proceeding

31 Bankruptcy Proceeding 3b Reorganization Plan within 14 d after hearing reorganization plan hearing on plan plus hearing on accounting acceptance of plan by the creditors? court affirmation of accepted plan = termination of bankruptcy proceeding fulfilment of plan

32 Reorganization Proceeding

33 Debtors entitled to Petition Reorganization Plan requires a voluntary petition plus immediate filing of a reorganization plan! Debtors entitled to Reorganization Proceeding legal entities business partnerships where no physical person bears full liability individuals running an enterprise estates of deceased persons

34 Reorganization Proceeding 1 General Prerequisites voluntary petition together with Reorganization plan 1 with trustee 2 debtor in possession court examination Art. 167 par. 1 IO 1 Art. 167 par. 1 and Art. 169 IO 2

35 Reorganization Proceeding 2a 20% offer trustee administration plan examination RPO no liquidation by trustee! 1st creditor assembly hearing for proving debts hearing for trustee s report hearing for plan hearing for report on accouning, 60 days within 60 until 90 days acceptance? court affirmation of accepted plan = termination of reorganization proceeding

36 Reorganization Proceeding 2b 30% offer debtor in possession administrator in reorganization proceeding! plan examination RPO 3 weeks 1st creditor assembly or hearing for trustee s report hearing for proving debts hearing for plan (hearing for report on accounting) within 60 until 90 days acceptance? court affirmation of accepted plan = termination of reorganization proceeding