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 the large tenders of listed companies, the form of designation or the system of access to the degree.
The Preliminary 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 degree and pass the tests established in the Regulations of the bankruptcy administration. 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 degree and pass the professional aptitude test established in the Bankruptcy Administration Regulations will be able to register in the Public Bankruptcy Registry as bankruptcy administrators.
Passing the exam enables you to perform functions in less complex competitions
Enrollment will be done by specifying the kinds of contests in which you can be appointed. Thus, in the Bankruptcy Administration Regulations, contests will be classified into three classes due to the complexity that they foreseeably 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 size (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 or the English language is taken into account.
In any case, the Draft Draft indicates that the contest judge, when making the appointment, must motivate the appointment in the adequacy of the knowledge and 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 regulations relating to the duties of bankruptcy administrators are modified 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 interest and supervision of the exercise of the position by the insolvency 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 their cause.
The duties of social administrators are implicit in current regulations, so no new features are introduced in the current regime of social action or in the possible classification 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 sixth section, 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 bankruptcy be classified as guilty.
Prohibitions to exercise
Those who are especially related to any person who has provided any kind of professional services to the debtor or to persons specially related to the debtor in the last three years may not be appointed bankruptcy administrators.
The provision of services to the company is cause of 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 may not be appointed bankruptcy administrators or delegated assistants. within the previous two years from the date of the first appointment.
In the computation of the maximum limit of appointments, the competitions in which those persons have been designated representatives of the legal entity appointed to exercise the functions of the position of insolvency administrator or assistant-delegate will be included.
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 list of registrants, those natural or legal persons who have been appointed to any of these positions in more than twenty bankruptcy proceedings that are in process in the date of the new appointment.
Neither may bankruptcy administrators be appointed who have been separated from this position within the previous three years, nor those who are disqualified by application of the provisions of this law.
In addition, no one may be appointed who in the negotiation of a restructuring plan has been appointed as an expert in the restructuring plan.
Statement to the judge
In the more complex bankruptcies, at the time of acceptance of the position, the appointee must deliver to the court a signed statement of the bankruptcy proceedings in which they have been appointed bankruptcy administrator or delegated auxiliary that are still in process, with indication of the court that has appointed him, the date of the declaration of insolvency and the judge who issued it. If any of the tenders is in the liquidation phase, the date of the resolution to open the phase must be indicated.
When the complexity of the bankruptcy so requires, the bankruptcy administration may request the judge to appoint 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 for lack of diligence
The serious breach of the duty of diligence, as well as the breach of the duty of impartiality and independence with respect to the debtor and, if it were a legal entity, its administrators and general directors, as well as the creditors, will be cause of separation of the insolvency administrator.
Unless evidence to the contrary can be presented, in these cases it will be presumed that the bankruptcy administrator seriously infringes the duty of care in drawing up the inventory and the list of creditors provided that the challenges presented and the value of the creditors are to be estimated. inventory or the amount of credits included in the list exceeds 20%.
In the event of cessation of the bankruptcy administrator before the conclusion of the bankruptcy, the judge will require him 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 deems appropriate, taking into account 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.
In the declaration of the contest, the judge may revoke or ratify the appointment of the expert. If ratified, he will have the status of insolvency administrator.
Calculation of the bankruptcy mass
Any creditor of the mass may 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 mass may request assistance from the bankruptcy judge.