Cross-border Insolvencies in Practice: Austria

Transcription

1 Cross-border Insolvencies in Practice: Austria Stockholm, 19 May 2008 MMag Barbara Pogacar Lawyer Brauneis Klauser Prändl Rechtsanwälte GmbH Folie 1

2 speaker MMag Barbara Pogacar Bauernmarkt 2, 1010 Vienna, Austria Tel: +43/1/ Fax: +43/1/ homepage: Folie 2

3 Overview 1) Short introduction into Austrian Insolvency Law 2) Austrian International Insolvency 3) The Case Study possible legal problems Folie 3

4 1) Short introduction into Austrian Insolvency Law two different insolvency proceedings reorganisation proceeding - Austrian Reorganisation Act ( Ausgleichsordnung ) - aimed at a reorganisation of the debtor bankruptcy proceeding - Austrian Bankruptcy Act ( Konkursordnung ) - aimed either at - a reorganisation or - a liquidation of the debtor Folie 4

5 1) Short introduction into Austrian Insolvency Law reorganisation proceeding debtor remains in possession, but important business transactions are subject to the approval of the court-appointed administrator settlement agreement has to be accepted by the creditors and approved by the court within 90 days debtor has to make a proposal for a settlement agreement: minimum quota 40 per cent payable within two years secured and preferential claims have to be fully paid Folie 5

6 1) Short introduction into Austrian Insolvency Law bankruptcy proceeding court-appointed administrator acts on behalf of the debtor settlement proposal: minimum quota 20 per cent, payable within 2 years; secured and preferential claims fully paid, or closing/sale of business - liquidation Folie 6

7 2) Austrian International Insolvency Law Recognition within the EU: automatic recognition of foreign main and secondary proceedings international jurisdiction for a main proceeding: COMI of the debtor no questioning of international jurisdiction establishment in Austria secondary proceeding denial of recognition due to a violation of public policy Folie 7

8 2) Austrian International Insolvency Law Recognition outside the EU: universal effect of Austrian insolvency proceeding exceptions: - foreign proceeding opened at debtor s COMI and - for foreign assets included in such a proceeding - effects of foreign proceedings lex fori concursus automatic recognition of a foreign insolvency proceeding if: - proceeding opened at debtor s COMI - proceeding in basic features comparable to an Austrian insolvency proceeding - no discrimination of Austrian creditors - no reciprocity required Folie 8

9 2) Austrian International Insolvency Law Recognition outside the EU: no recognition of a foreign proceeding - in so far as an Austrian proceeding was opened or - if the recognition would result in a violation of public policy foreign administrator has to prove authorisation publication of foreign proceeding Folie 9

10 2) Austrian International Insolvency Law Effects and course of the insolvency proceeding effects of the foreign proceeding lex fori concursus effects of the Austrian insolvency proceeding - no direct effect the filing of the application interim measures possible - debtor may no longer dispose of the assets - automatic stay of law suits - relief from enforcement proceedings - avoidance of legal transaction - certain contracts can be terminated Folie 10

11 3) The Case Study possible legal problems choice of insolvency proceeding continuation/closing of the debtor s business post-commencement financing cooperation/coordination of concurrent proceedings claim submission termination of contracts of employees Folie 11

12 3) The Case Study possible legal problems impact on sales contracts impact on the cash pooling possible avoidance of transactions among the members of the group - cash pooling - delivery contract possible claims for payback of capital invested loans granted equity substitute payments? main problem for the corporate group coordination of the different proceedings Folie 12