22 March, 2020
Several jurisdictions around the world, including Australia, Germany, Spain, United States, Singapore, India and the United Kingdom have proposed or implemented changes to their insolvency frameworks. At the same time, some academics, insolvency practitioners, and think tanks have also suggested some proposals to adapt insolvency law to the times of COVID-19.
This post summarizes a recent paper seeking to contribute to the debate by providing insolvency legislators with some policy recommendations to minimize the harmful economic effects generated by the COVID-19 outbreak. These recommendations, suggested just for companies affected by the coronavirus, include the following insolvency and insolvency-related reforms:
1.- The suspension of the duty to file for bankruptcy in countries where corporate directors are subject to this duty (e.g. Germany, Spain). This reform was suggested in a previous post published on this blog and it has been implemented in Spain and announced in Germany. However, while the German Government has suspended the duty to file for bankruptcy until 30 September 2020 (with the possibility of extending it until 31 March 2021), Spain has suspended this duty just until the end of the state of emergency (estado de alarma), that is, until 11 April 2020, even though this period can be extended by Parliament. In my opinion, the German solution seems far more desirable, since the suspension of this duty should last long enough to let companies recover from the coronavirus. And unfortunately, I think it will take time to let companies recover from the losses and financial difficulties generated by the COVID-19 outbreak.
2.- The suspension of the duty to recapitalize or liquidate companies in situations of qualified losses existing in many jurisdictions (particularly in Continental Europe and Latin America). This reform was suggested in a previous post published on this blog and it has been implemented in Spain. However, while the Spanish Government has just suspended this duty until the end of the state of emergency, I think it would be desirable to suspend it for at least one year.
3. The suspension of creditors’ rights to file involuntary bankruptcy petitions. This reform has been adopted in many jurisdictions around the world, including Spain, Turkey, Italy and, subject to certain exceptions, Germany. In Spain and Turkey, however, this reform has a very limited duration, since it will last just until the end of the state of emergency. Other countries, however, such as Australia and India, have increased the quantitative threshold required to file an involuntary bankruptcy petition by creditors. More recently, Singapore has prohibited the initiation of insolvency proceedings against debtors affected by the coronavirus subject to the protection of the moratorium. This moratorium will last for six months. In my opinion, the approach adopted in Singapore seems more desirable than those implemented in India and Australia (due to the limited effectiveness of this approach to protect debtors) and Spain (due to its limited period of time).
4.- The inability to terminate contracts and enforce security interests for a default on payments by debtors affected by the coronavirus. A similar reform has been adopted in Singapore.
5.- The inability of secured creditors to lift the automatic stay if a viable company affected by the coronavirus voluntary decides to file for bankruptcy. This restriction should apply even if the debtor is unable to provide adequate protection.
6.- A more permissive approach to rescue (or DIP) financing, even if the authorization of rescue financing affects pre-existing rights from secured creditors or administrative expense claimants. Some jurisdictions, such as Colombia, have even implemented a system of rescue financing similar to those existing in Singapore and the United States.
7. A suspension of the provisions subordinating shareholder loans existing in several jurisdictions (particularly in Continental Europe and Latin America). This reform has been implemented in Italy and Germany.
8. A suspension of the running of the lookback period in countries suspending the duty to file for bankruptcy and/or impositing a pre-bankruptcy moratorium. Similar reforms have been adopted in Germany, Czech Republic and Singapore.
9. Implementation of new rules to facilitate the commencement and management of insolvency proceedings, specially in the context of small companies. This measure has been adopted in Colombia, even though not exclusively for small companies. In the United States, the threshold to have access to the simplified insolvency rules for small companies has been expanded.
10.- A more relaxed system of liability of directors in the zone of insolvency, even considering a suspension of the liability for wrongful trading. This reform has been adopted in Australia and Singapore, and it has been announced in the United Kingdom.
Of course, these reforms will be useless if they are not accompanied by many other legal, financial, tax, and economic reforms. Still, adapting the insolvency framework to the time of the coronavirus can hopefully minimize the harmful economic effects generated by this global pandemic.
The full paper analyzing how insolvency law is being adapted (or could be adapted) to the times of COVID-19 can be found here.