The patrimonial and financial reorganization of capital companies in crisis situation sometimes requires the adoption of measures affecting the economic and legal substance of the position of partner and for this ra-zon, require the adoption of resolutions by the general meeting. The capitalization of credits or issuing securities and convertible bonds are paradigmatic cases because im always-plican a current or potential dilution from partners who do not exercise their preemptive rights, but many conceivable cases (v.gr . modification of the corporate purpose, with purpose splits sanitation, traceable to the implied powers of the general meeting on management, etc) subfilialización.
The Spanish Insolvency Law does not allow adoption process under the tender-salt measures still needed to con-achievement of the corporate reorganization, affecting the organizational structure and the capital of the insolvent entity (v. gr. appointment or forced cessation of corporate managers, excluding partners, capitalization Credit by judicial decision, etc..). This is due to the nature of the rules that compose it incumbent on the assets of the company and its owner only affect the extent necessary to lograrese goal.
The inadequacy of the legal framework makes it necessary to find solutions as those contained in the Royal Decree-Law 4/2014, of 7 March on refinancing and restructuring of corporate debt in regards to qualify-ing guilty for hindering competition refinancing agreements. Imposing the socio enforcement duties collaboration with sanitation is not easy and therefore the legislature has opted for a standard preventive purpose - punitive: the partners refuse without reasonable cause to adopt an agreement on funding of credits , issuing securities or convertible stable and thus frustrate agreement refinancing shall be considered affected by grade and subject, among other consequences, responsibility for the bankruptcy deficit.
The following sections discuss some of the assumptions of this new qualification guilty because of competition and, to a first approximation, we try to offer some criteria that, in our view, can guide its implementation.
Elements of the assumption made
The refusal without reasonable cause
The new rebuttable presumption of paragraph 4 of Article 165 allows qualifying competition guilty when the debtor or, if applicable, their legal representatives, administrators or liquidators:
"4th. They have refused without causing sa reasonable capitalization credit or issuing securities or convertible instruments-do frustrate the achievement of a refinancing agreement under Article 71 bis.1 or fourth additional provision. For these purposes, it is presumed that the capitalization obeys reasonable cause when so declared by report emission direction, prior to the refusal of the debtor, by expert independent you appointed pursuant to the provisions of Article 71a April. If there is more than one report, must concur in that assessment the majority of reports issued.
In any case, that the refusal to determine guilt approval stability of the contest, the agreement should recognize pro-posed for the partners of the debtor a right of first refusal on the stock, shares, securities or convertible instruments to which creditors as a result of the capitalization issue or proposal, if further alienation thereof.
However, the proposed agreement may exclude the preemptive acquisition in transmissions made by the creditor to a society of their own group or any entity whose purpose is the ownership and management of holdings in the capital of other entities. In any case, it means the alienation made in favor of a third party by the creditor or by the companies or entities in the preceding paragraph refers to. "
Article 172, which regulates the content of the judgment of rating and the stable dispo-ne-ce that the judgment may be considered affected by the rating managers and legal consequences:
"(...) Members who had ne-gado without reasonable cause to capitalization loan or issuing securities or convertible securities on the terms provided in number 4. º of Article 165, depending on their their contribution to the formation of the required majority for rejecting the agreement. "
It should be noted that the reference to their contribution to the formation of the majority required for the rejection of the agreement is to decide on the attribution of personhood affected by the characterization and not to "graduate" the associated legal implications.
The last paragraph of this provision adds a rule that refers to the administra-tors:
"The presumption contained the number 4 of Article 165 will not apply to administrators who had recommended the recapitalization based on reasonable cause, even if this were subse-quently rejected by the partners."
The new art. LC 172a has the consequence of law relating to the reintegration of the bankruptcy deficit, which operates without prejudice to the other inherent in the rating (disqualification, indemnity for damages, etc..)
"When the sectional qualifying Biera hu-formed or been reopened following the opening of the liquidation, the judge may count-able to all or any of the admins, liquidators of law or fact, or guardian general, the insolvent entity and the partners do have negative without reasonable cause the capitalization of credits or issuance of securities or securities convertible into the terms provided in the number 4. º Article 165, which had been declared affected by the rating coverage, to-tal or part of the deficit to the extent that the conduct that determined the rating guilty generated or aggravated insolvency. "
The wording of these rules and their integration in the regulatory system will generate the qualification problems in practical application, as it can not be otherwise if one considers the haste of this le-gislativa intervention.
In general it can be said that the assumption of basic fact of the presumption is to frustrate the achievement of an agreement-refinancing-tion for refusing without reasonable capitalization of credits, securities or convertible securities causes (art. 165.4 º LC), but from there some doubt about the elements that compose the unlawful behavior arise.
First you have to assess whether the rule presupposes the valid constitution of the general meeting and formulation of a proposed agreement to be rejected by issuing votes or whether to apply-la also when the board fails to be held by prevent-ing hinders the formation of the body due to lack of legal or statutory quorum. The answer should be yes because the formation of the required majority is the result of a process comprising the constitution of the board and if this constitution prevents also prevent the formation of the majority. The rationale for this assumption is faulty cali-tion and thus hinder understand that all possible events should be included. It would not make sense to treat differently what is the same.
Reasonable cause (which in your case must find experts who
inform the content of agreements) presupposes the appropriateness of the measure for achieving the purposes of the refinancing. The wording of the rule is clear that refusal to recapitalize refinancing must be frustrated, so Deuna be treated not only appropriate, but also an essential condition. It should also find some proportionality between the sacrifice that the partner and the situation is imposed
that would rechazars if e (eg r. loss of all value position in the context of socio-li quidación). Although recognition of rights of first refusal, can not impose disproportionate sacrifices to equity holders of the des-qualitatively (type of measurement) or quantitative (extent of dilution). In line of principle, when members lack a true economic interest in the transaction by encon trarse society-at-patrimonial insufficiency, no opposition may be considered reasonable.
The reasonableness of the proposal should be demonstrated who intend to do va-ler the effectiveness of this presumption in section further qualification to tender for creditors of the company (if it opened). The support of each term specifically provided in the reports of independent experts is to reverse the burden of proof on whether the adoption of these agreements (capitalization appropriations, securities, financial instruments) was adequate and neces-sary to achieve the purposes of refinancing and causes a disproportionate sacrifice or not
The rebuttable nature of the presumption
The scientific doctrine and jurisprudence widely consider that the rebuttable presumptions of guilt competition (art. 165 LC) serve as proven the subjective element of the general clause (malice or gross negligence), but that the guilty want to try re-rating also concurs that an objective element (generation or aggravation of insolvency) that is associated with the idea of causation of a patrimonial damage to the debtor (art. 164.1 LC) ..
In accordance with this thesis, we will say that the unjustified refusal to recapitalize only proves the subjective element for (willful misconduct or gross negligence) guilty qualification and who intend ha-CERLA worth, must prove that denial caused property damage generated or aggravated the insolvency (the objective element). Test-do property damage caused by the refinancing agreement, with all that that implies not adopted is then required.
This understanding of the scope of the rebuttable presumptions are raised serious doubts because in many cases it will be impossible to prove the connection of the behaviors that integrate with the causation of financial loss and may surely another more coherent understanding of this norm the systematic or-condemnation (cf. the thoughtful reflections of SAP Barcelona February 21, 2008).
In our opinion, evidence of behaviors that make up the presumptions of Article 165 LC has a circumstantial effectiveness of des-ordinate management and allocation (connection Causation) insolvency of such management is what is require - re qualify guilty to bankruptcy. Proof of damage is only relevant at a later time, to ascribe the consequences associ-ated to the qualification (for damages, liability for the deficit, disqualification, etc..).
Thus, the insolvency of the legal person who refused to sign an agreement to refinance with capitalization of credits (adequate without undue sacrifice) that would have allowed avoid insolvency (generation) or redirect it in a context of proximity to insolvency (aggravation) facie attributable to careless behavior in relation to the field of social creditors premium is declared. This will exclude the incidental nature of insolvency and de-clarar guilty.
The evidence against it is possible. The re-financing is not always the only way to deal with the business crisis and diligent be other options from the point of view of protection of creditors (eg the imminent insolvency agreed to urge the application of competition with immediate opening liquidation). If there was no alternative goes, the mere refusal to refinancing determine the culprit in the qualifying competition terms and signed with all its consequences.
2.2. The allocation to members and individuals affected
Reading all these precepts le-Wales shows that the overall reform is intended to punish the owners of capital that ham-license refinancing society in crisis, in turn, requires the capitalization of debt issuance convertible securities or instruments and not to create a new course of skill and responsibility of administrators.
The last paragraph of Article 172 is simply to remember this. How-do legislator warns that "The presumption contained the number 4 of Article 165 will not apply to administrators who had re-commended the recapitalization based on reasonable cause, even if it was subsequently rejected by the partners" does not tell sensu contrary administrators do not recommend the adoption of the measure will be considered by the rating affected by the implementation of this new course of qualifi-cation guilty of the competition.
Administrators who do not recom-mend measures of sanitation and general duties violate protection encuadrables the field of corporate creditors in general guilty competition clause (art. 164.1 LC). In the legal model, collaboration of the managers that ne-gocian the refinancing agreement and the formulation of a proposed recapitalization agreement or issuing securities or convertible instruments are assumed.
The reference to their contribution to the formation of the required majority to reject the agreement arise, however, word problems.
In general, the attribution of personhood affected by the characterization is performed with a certain automatism, because when it comes to administrators only needs acre ditar administrator status at the time the events took place that led guilty qualifying competition and is affected you should prove that they are not attributable to negligence or fraud title defaults have reasoned that classification ford person.
The contribution to the formation of the majority to reject the agree-ment is to serve for courts to handle this statement with some discretion depending on the circumstances of each case.
In the field of closed societies is difficult to know how the norm applies because all votes count and is easily identifiable to the socio-taculiza obs. The shade may have been intended for listed companies where it will be possible to distinguish between partners actively ham-culizan by soliciting proxies to prevent flourish given the Board of Directors and shareholders - investors have been limited to grant representation to its for or who just do not have ac-dido to the general meeting to which never come. Clearly, these shareholders have contributed to preventing the formation of the required majority, but that seems to sanction should be reserved for those who actively prevented the proposal succeed.