Bankruptcy reform guide (IX): New conditions for the appointment of the bankruptcy administrator by the judge

Madrid 13 / / 2021 – 18: 36

The text of the Preliminary Draft Law on bankruptcy reform refers on several occasions to the Bankruptcy Administration Regulations, which after years of waiting, still continue without being approved, to the great annoyance of the professionals of This complicated activity, among other things, because it establishes the fees to be received for their services, the level of preparation, the requirements to be met to participate in large competitions for listed companies, the form of designation or the system of access to the degree.

Again generalities The Draft refers to the training of these professionals Through the double requirement that natural or legal persons who intend to be registered as bankruptcy administrators in the public bankruptcy registry have the title on and pass the tests established in the Bankruptcy Administration Regulations. However, once again it is not explained what the teachings or titles should be, or how to access the different levels of complication of the procedures.

Registration in the registry Only natural or legal persons who have the title and will be able to register in the Public Bankruptcy Registry as bankruptcy administrators pass the professional aptitude test established in the Bankruptcy Administration Regulations.

Passing the exam enables to perform functions in less complex competitions The registration will be practiced specifying the contest classes in which you can be named. Thus, in the Bankruptcy Administration Regulations, contests will be classified into three classes due to the complexity that they may have and the requirements that the bankruptcy administrator must meet in order to be enrolled in each class will be specified. Those enrolled in a higher class will be entitled to perform in a lower class or classes. Those who pass the exam will be qualified to perform functions in less complex competitions.

Designation of the professional Instead of a classification of bankruptcy proceedings into three categories based on their dimensions (small, medium and large), the Draft Bill sets the parameter of the complexity of the procedure.

In addition, the correlative turn system in more complex competitions, including competitions with cross-border elements, in which knowledge of the country’s language is taken into account or the English language.

In any case, the Draft Project indicates that the contest judge, when making the appointment, must motivate the appointment in the adequacy of knowledge and the experience of the person named to the particularities of the case.

The combination of both forms of designation makes it possible to configure a clear and transparent system and, at the same time, adapted to the specific case.

Duties of the administrator The regulation regarding the duties of insolvency administrators in order to make explicit the requirements for impartial and independent action.

The pre-legislator considers that the objective of efficiency is not achieved simply with this appointment system and the Directive establishes provisions regarding the necessary mechanisms to relate remuneration and efficiency, conflict of interests and supervision of the exercise of the position by the bankruptcy administrator.

To promote the speed and agility of the procedure, efficiency will be promoted not only by reductions in remuneration but also by incentives for the prompt resolution of procedures.

In this way, incentives are introduced in the remuneration of the insolvency administrator conditioned on the speed and agility of the procedure, and penalties if the management is not efficient, which will occur if the procedure lasts more than 12 months for your cause.

Qualification of the contest The duties of social administrators are implicit in current regulations, so no new features are introduced in the current regime of the social action or in the possible qualification of the bankruptcy as guilty.

This law maintains the qualification of the bankruptcy, although with important innovations related to the presentation of the qualification report, with continuity of deadlines to accelerate the processing of the Section sixth, and the suppression of the opinion of the Public Prosecutor’s Office.

This deletion is offset by the recognition of the legitimacy of creditors who reach a certain percentage of the liability to present a qualification report simultaneously and independently of the bankruptcy administrator’s report, requesting that the contest is qualified as guilty.

Prohibitions to exercise Those who are specially related to any person who has provided any kind of professional services to the debtor or to persons specially related to him in the last three years.

The provision of services to the company is cause for exclusion for the appointment In the event that there are enough people available in the list of registrants, the natural or legal persons who have been appointed to any of these positions by the same court or by the same judge in three competitions within the previous two years counted from the date of the first appointment.

The calculation of the maximum limit of appointments will include the competitions in which these people have been designated representatives of the legal person appointed to exercise the functions of the position bankruptcy administrator or assistant-delegate.

Appointments made in competitions of companies belonging to the same group of companies will be counted as one.

In the event that there are enough people available in the registered list, those natural or legal persons who have been appointed for anyone may not be appointed bankruptcy administrators or delegated assistants. of these positions in more than twenty creditors’ bankruptcies that are in process on the date of the new appointment.

Neither can bankruptcy administrators be appointed who have been separated from this position within the previous three years, nor who are disqualified by application of the provisions of this law.

In addition, who in the negotiation of a restructuring plan may not be appointed as an expert in the restructuring plan.

Declaration to the judge In more complex competitions, at the time of acceptance of the position, the nominee must deliver to the court a signed declaration of the bankruptcy proceedings in which they have been appointed bankruptcy administrator or delegated assistant that are still in process, indicating the court that appointed them, the date of the bankruptcy declaration and the judge who issued it . If any of the contests is in the liquidation phase, the date of the resolution to open the phase must be indicated.

Assistant delegates When the complexity of the bankruptcy so requires, the bankruptcy administration may request from the judge the appointment of one or more delegated assistants, indicating the functions to be delegated, which may include the continuation of all or part of the debtor’s activity

Separation due to lack of diligence The serious breach of the duty of care, as well as the breach of the duty of impartiality and independence with respect to the debtor and, if it were a legal person, its administrators and general directors, as well as of creditors.

Unless proof to the contrary can be presented, in these cases it will be presumed that the bankruptcy administrator seriously infringes the duty of care in preparing the inventory and the list of creditors provided that the challenges presented are going to be estimated and the value of the inventory or the amount of the credits included in the list exceeds 20%.

Accountability In the event of dismissal of the insolvency administrator before the conclusion of the contest, the judge will require you to present a complete rendering of accounts within a month, in accordance with the provisions of the bankruptcy rule itself.

Exercise as an expert The appointment of the restructuring expert may fall on a natural or legal person with the conditions to be appointed as an expert or insolvency administrator.

In the resolution, the judge will establish the duration of the assignment and will set the expert the remuneration that he considers appropriate considering the value of the productive unit or units.

The right to receive the remuneration may be based on the result and will be set by the contest judge The right to receive the remuneration may be totally or partially depending on the result. The resolution by which the appointment of the expert is agreed will be kept confidential.

Subsequent competition In the declaration of the competition, the judge may revoke o ratify the appointment of the expert. If ratified, he will have the status of insolvency administrator.

Calculation of the insolvency mass Any creditor of the mass may in at any time require the bankruptcy administration to rule on whether the mass is insufficient or is foreseeable for the payment of credits. If the administrator does not answer the request or does so in generic or imprecise terms, the creditor of the estate may request assistance from the bankruptcy judge.


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