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Willem van Nielen from Recoup Lawyers (NL) (www.recoup.nl) looks at the new draft restructuring law in the Netherlands that the Dutch Government submitted to Parliament on 8 July 2019. The draft Bill allows for global restructurings as it features elements of the USC chapter 11 (such as a cram down mechanism and moratorium) and the UK Scheme of Arrangement (such as implementing a plan outside of formal insolvency proceedings).
This article is based on the presentation of Willem and his discussion with a UK (Liz Osborne and Felicity Toube Q.C.) and France (Stephane Bonifassi) panel during INSOL Europe/IWIRC London Network Breakfast Seminar in London on 9 September 2019 concerning cross-border restructuring instruments of the UK, France and the Netherlands.
The Dutch Scheme (the Act on the Confirmation of Private Plans’) claims to be a state-of-the-art restructuring procedure as it is simple, fast, flexible, reasonable and cost-efficient. It is a procedure that remains outside of formal insolvency proceedings. It merely facilitates a procedure where the court can be requested to confirm the plan (where a majority can bind a minority within each class) and it can be imposed on dissenting classes (cram down). The court can onlyconfirm the plan when the debtor is or can reasonably be expected to become insolvent, which could be expected a year ahead. However, no formal court entry test is required. The court can be involved at the latest when it is requested to confirm the plan. So, there can be a minimum court involvement and the whole proceedings could be limited to three to five weeks (and there is no possibility of any appeal).
One of the flexible elements of the draft Bill is the provision of an option to choose between a public and a confidential procedure. Only the public procedure will be placed on Annex A of the Recast Regulation on Insolvency 2015/848, Regulation (EU), 2015/848 (the Recast Regulation on Insolvency) and (thus)
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