[BANKRUPTCY, INSOLVENCY & REHABILITATION PROCEEDINGS IN THE NETHERLANDS] 67
During the suspension of payment, only unsecured and non-preferential creditors are prohibited from enforcing their claim against the debtor’s assets. Creditors of secured claims (holders of right of pledge of mortgage) or preferential creditors (such as the Dutch Tax Authority, employees or other creditors whose claim is preferential by law) can ignore the moratorium and can enforce their rights as if there was no moratorium. As a result of the granting of suspension of payment, as of 0:00 hours of the day on which the court grants suspension of payment, the debtor can only exercise its power of disposition and capacity in relation to its assets with the cooperation or authorization of the administrator. This is where the suspension of payments differs from a debtor in possession proceeding. Creditors of unsecured and non-preferential claims are prohibited from enforcing actions against the debtor’s assets and seizures made prior to the opening of the suspension of payments cease to exist. Additionally, the district court (and not the supervisory judge, as in bankruptcy) can issue a written order ( afkoelingsperiode ) stipulating that, for a stay period not exceeding two months, each right of third parties, including secured and preferential creditors and creditors to the suspension of payment e state, to enforce against the debtor’s assets or to claim assets under the control of the bankruptcy can only be exercised with his authorization. In contrast to a bankruptcy proceeding, pending lawsuits are not automatically suspended. V. WHOA – the Dutch Scheme The WHOA is applicable for companies that are in a situation where it is expected that they cannot continue to pay their debts. The procedure can be filed by the debtor itself or by
a creditor, a shareholder, the debtor’s work council or the debtor’s workplace representation. When the WHOA is filed by anyone else than the debtor, a restructuring expert is automatically appointed by the District Court. A restructuring expert can also be requested when the debtor files for a WHOA. This is often done to give the restructuring plan more objectiveness. Upon filing, one can choose between a public and a confident variant of the procedure. The public WHOA is listed in Annex A of the Regulation (EU) 2015/848 on Insolvency Proceedings and has therefore automatic recognition in all EU countries (except Denmark and Ireland). The debtor or – if appointed – the restructuring expert proposes a private restructuring plan to (all or a subset of all) creditors and shareholders where the rights of these creditors of shareholders will be amended. The rights of employees cannot be amended under the WHOA. During the WHOA-procedure, the debtor has access to different supportive measures to enable restructuring, such as a suspension of bankruptcy, a stay period, a protection of security for new funding and the possibility to end or alter contracts. Contrary to bankruptcy, but similarly to suspension of payments, the rights of employees are protected, and employment contracts cannot be effected by the plan. The district court can be asked to lift pre- and post judgement attachments and for any other necessary tailor-made measures. The District Court can also be asked at an early stage for binding decisions regarding legal issues (such as voting rights, class placements, etc.) to avoid uncertainties later on the procedure. Creditors (or certain categories of creditors) are put in classes of similarity and vote within this on the acceptance of the plan. The plan is accepted
ILN Restructuring & Insolvency Group – Bankruptcy, Insolvency & Rehabilitation Series
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