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Workgroup

Refinancing Agreements

Why?

In recent years, it has been confirmed that the legislative reforms aimed at streamlining alternative mechanisms to the competition for the solution of business insolvency, although they are still susceptible to improvement, are yielding results.

Fide convened this Working Group in order to analyze the main problems generated by the regulation of refinancing agreements, and suggest proposals for improvement.

Publications

Conclusions Working Group Fide: Refinancing Agreements

This document contains the conclusions of the three meetings of the Working Group Fide: Refinancing agreements entered into in Madrid on April 3, 2017, May 29, 2017 and January 22, 2018*. Its members and purposes are detailed at the end of the document.

  • Is the current Bankruptcy Law adequate for the restructuring of a group of companies? Or is it necessary to introduce improvements due to the entry into force of the EU Insolvency Regulation and the new proposed EU directive?
  • Analysis of the experiences of the AR-AEF to date:
    • Statistics: Typologies, problems solved and solutions reached.
    • As they have been raised in practice: exposition of real cases.
  • Strategies to ensure the success of the AR-AEF:
    • Legal strategies regarding companies of the same group located inside and outside the EU.
    • Mechanisms to avoid the opening of insolvency proceedings and loan enforcement.
  • Issues surrounding the determination of the financial liability:
    • Criteria used in practice. Could or would it be convenient to unify criteria within the commercial jurisdiction? Are the decisions obtained to date precedents within the same jurisdiction, bearing in mind that there is no appeal?
    • Through what means can the Court verify ex officio compliance with the legal requirements for the approval of the AR-AEF? Specifically, how to verify that the content of the AR-AEF is adequate to achieve the viability of the company or the group, in the short and medium term?
    • Analysis of the independent expert's report, is it worth providing this report with the AR-AEF that you want to homologate? Advantages and disadvantages.
    • What practical effects can the independent expert's report generate with a view to homologation and eventual challenge?
  • The challenge of the AR-AEF:
    • Criteria to assess the disproportionate sacrifice on which to base the challenge of the AR-AEF. Practical difficulties to illustrate and prove that another solution would have been better than the one obtained through the AR-AEF.
    • On the basis of what grounds can the approval of an AR-AEF be challenged? Could one claim the disproportionate nature of the guarantees provided, the unjustified search for protection against rescission actions? Who could contest?
    • What real means are available to urge the ineffectiveness of an AR-AEF?
    • Effects derived from non-compliance with the AR-AEF?

Have participated in this working group: 

  1. Angel Alonso Hernandez, Partner Lawyer of the Department of Restructuring and Bankruptcy of Uría Menéndez.
  2. José María Blanco Saralegui, Coordinating Magistrate of the Technical Cabinet of the Supreme Court-Civil Area.
  3. Marta Cervera Martinez, Magistrate of the Mercantile Court 8 of Barcelona.
  4. Barbara Cordoba Ardao, Titular magistrate of the Commercial Court 9 of Barcelona.
  5. Jose Maria Fernandez Seijo, Magistrate Commercial Court No. 3 of Barcelona.
  6. Juan Ferré Falcon, Jones Day Partner in the Bankruptcy and Restructuring practice.
  7. Antoni Frigola i Riera, Of Counsel of the Procedural and Regulatory Department of EY. Magistrate specialized in commercial matters on leave of absence.
  8. Julio Fuentes Gomez, Deputy Director General of Maritime Regulations and International Cooperation in the General Directorate of the Merchant Marine, Ministry of Development. Civil Administrator of the State.
  9. Francisco Jose Garcimartin Alferez, Professor of Private International Law at the Autonomous University of Madrid. Linklaters Consultant.
  10. Blas Alberto Gonzalez Navarro, Founder of the law firm Blas González Abogados. Commercial judge on leave of absence.
  11. Aurelio Gurrea Chalet, President of Dictum Abogados and President of the Malaga Business Owners Association.
  12. Julio Ichaso Urrea, Lawyer. Partner of the Department of Procedural Law and Bankruptcy of PwC. Head of the Bankruptcy area.
  13. Cristina Jimenez Savurido, President Foundation FIDE. Judge on leave.
  14. Amparo Lopez Senovilla, Undersecretary of Economy and Business.
  15. Luis Martin Bernardo Partner Abencys. President of the Professional Association of Insolvency Administrators (ASPAC).
  16. Eduard Milá Visaconill, Partner of FTI & Partners corporate recovery Spain, SLP
  17. Francisco Pérez-Crespo Payá, Partner of Cuatrecasas.
  18. Ignacio Sancho Gargallo, Magistrate of the First Chamber of the Supreme Court.
  19. Miguel Temboury Redondo, Formerly Undersecretary of Economy and Competitiveness.
  20. Adrian Thery Marti, Partner of the Department of Restructuring and Insolvencies, of Garrigues.
  21. Ignacio Tirado Marti, Principal Investigator of the European Commission Project on contractual solution to insolvency. Professor of Commercial Law at the Autonomous University of Madrid.
  22. Javier Vaquer Martin, Magistrate-Judge of the Commercial Court No. 6 of Madrid.
  23. Sergio Velez Alvarez, Senior Managing Director, Co-Leader of Corporate Finance at FTI CONSULTING and head of the Madrid office.
  24. Pere Vilella Xampeny, Economist at FTI & Partners.
  25. Inigo Villoria Rivera,  Lawyer. Partner at Clifford Chance, Litigation and Arbitration Department. Head of the Bankruptcy Area.
  26. Javier Yanez Evangelista, Partner of Uría Menéndez Abogados.



All the people who have participated in this working group of Fide, have done so in a personal capacity and not on behalf of the entities or institutions where they carry out their professional work, so These conclusions do not reflect and do not include institutional positions, but rather particular ones of each one of the members of the group *. Fide thanks to all of them their dedication and effort to obtain these conclusions.

These conclusions were also evaluated and debated on May 8 by a group of experts in Barcelona.

Academic coordination: Carmen Hermida

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