Newsletter

Restructuring law

Over a year ago, on January 1, 2016, the Restructuring law act of May 15, 2015 (Journal of Laws 2015 item 978) came into force. The aforementioned act is somewhat a nod towards debtors with financial problems, and more precisely insolvent debtors or ones threatened with insolvency, with simultaneous allowing for the interest of creditors. The forms of “debt removal” of entities proposed in the aforementioned act are gradually becoming more and more popular, as the data published in the Court and Commercial Gazette demonstrates that in 2016 the number of such motions to cover debtors with restructuring proceedings based on the aforementioned act amounted to 212, and during the first quarter of 2017 alone, 87 such motions have already been filed. We have noticed that more and more often we receive information from debtors that they have been covered by recovery procedures. This is one of the four proposed types of restructuring proceedings. It is directed at debtors, who are in a very difficult situation, and who are worth of “debt removal” and remaining on the market, rather than being liquidated.

In reference to public procurements, it is worth keeping in mind the possibility of covering entities with restructuring proceedings, since the act regulating the matter of public procurements has not been amended adequately to the aforementioned changes, which in consequence leads to the fact, that art. 24 of the Public procurement law act, in the passage envisioning the negative premises for the exclusion of a contractor, fails to allow for the exclusion of entities covered by restructuring proceedings based on the act of May 15, 2015. The aforementioned legal state casts a shadow of uncertainty, in particular in reference to entities covered by recovery procedures (especially in the light of the growth of interest in such proceedings), and who participate in public procurements, since the legislator allows for the right of the trustee to withdraw from agreements, which are disadvantageous to an insolvent debtor. Admittedly, only in the part, in which the said agreements were not performed by the date of issue of the decision to commence recovery proceedings, but still this raises doubt as to the stability of performance of procurements.