On the occasion of the entry into force of the Consolidated Text of the Bankruptcy Law, on September 1, we bring you the main novelties to highlight of it:
As we explained in previous posts, the new bankruptcy law (“LC”) regulates the system, and clarifies and harmonizes the numerous legal regulations on insolvency that have arisen at different times, not always from coinciding conceptions. In addition, the terminology has been unified and the legislative formulas have been simplified.
The articles of the new LC have 752 articles, multiplying the current LC by 3, and is divided into three books: bankruptcy, pre-bankruptcy law and private international law.
The new systematics supposes a substantial change in the previous structure, reason why it will suppose a very important effort of study and restructuring for the professionals of the Law.
Among the main novelties, we can highlight the following:
- Possibility of modifying an already approved settlement plan.
- Limitation of parties to the bankruptcy incident, excluding non-interested creditors.
- Possibility of accumulation of procedures that deal with reintegration actions, in the event of subsequent filing by the Bankruptcy Administration.
- Granting of authority to the Judge to accumulate ex officio of all or several of the challenges to the inventory or the list of creditors.
- Processing through the bankruptcy incident of the actions that the wage guarantee fund or the workers must exercise against the order that decides on collective labor issues.
- The possibilities of modifying the definitive list of creditors are extended in those cases in which appeals filed against resolutions of the bankruptcy judge are considered, challenging the list of creditors or when resolutions have been issued in which the amount or class of credits or extinction of a bankruptcy credit.
- Linking the debtor and ordinary creditors with credits prior to the bankruptcy, even in the cases in which they have not voted in favor of it or have adhered to the proposed agreement.
- The power of the Judge to modify the content of an agreement is limited, except to correct calculation or material errors or to correctly interpret any of its clauses.
- The content of the Judgment that approves the agreement is regulated, obliging to include the full text of the agreement in the resolution.
- The bankruptcy administration is empowered to request the judge at any time during the process to modify the approved liquidation plan, in case of interest for the bankruptcy or in favor of the principle of greater and faster satisfaction of creditors.
- Forecast of a new cause for the conclusion of the bankruptcy, consisting of a single creditor being found in the definitive list of creditors.
Undoubtedly, the new LC has brought less substantive changes than expected, since issues that specialists have been demanding for a long time have not been addressed, such as the processing of a more transparent rating section, or the possibility that any creditor request the responsibility of the administrators despite a fortuitous report from the bankruptcy administration.
We will have to wait to see what the real significance of this new norm is in the Commercial Courts, which have a tough task in this just begun judicial exercise, under the conditions that the “new reality” imposes.
