NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
expected to receive a payment in cash (so that they are in the money). In the event no restructuring expert or observer is yet involved in the proceedings, the court will appoint an observer (see 4.5 The Position of Office Holders in Restructuring, Rehabilitation and Reorganisation for their tasks and powers). Next, the court will (ex officio) consider the general grounds for dismissal, such as the absence of the insolvency situation or non-compliance with pro - cedural rules. In addition, creditors or shareholders who have not assented to the restructuring plan may invoke additional grounds for rejection – for example, when it turns out that these creditors or shareholders are in a less favourable position on the basis of the restructuring plan than if the debtor’s assets were to be liquidated in bankruptcy, or when the restructuring plan deviates from the priority of claims. If the court confirms the restructuring plan, the pro - cedure comes to an end and the restructuring plan becomes binding on all creditors and shareholders concerned subject to the restructuring plan. The restructuring plan also becomes binding on all credi - tors or shareholders who did not assent to the restruc - turing plan or who did not vote at all. The confirmation judgment provides an enforceable title for the creditors, allowing them to enforce compli - ance with the restructuring plan by invoking the judg - ment. If the debtor fails to comply in a timely man - ner with the restructuring plan, they will be obliged to compensate creditors and shareholders for any dam - age suffered as a result. In addition, creditors may also have the option to dissolve the restructuring plan. The starting point is that the debtor retains the man - agement and disposal of their assets regarding the course of business (debtor in possession). The debtor can therefore continue to carry on their business and perform legal acts during the WHOA procedure. This is also the case in the event a restructuring expert or observer is appointed. Even once a cooling-off period has been declared, the debtor remains authorised to use, consume and dispose of the assets, but only to 4.4 The Position of the Debtor in Restructuring, Rehabilitation and Reorganisation
the extent this falls within the ordinary course of busi - ness. The debtor can request the court to authorise certain legal acts, in particular providing security for obtain - ing extra (new) financing or (extraordinary) sales to generate liquidity. If the restructuring should fail and bankruptcy proceedings were to be opened, the trus - tee cannot annul the legal act in question if it has been approved by the court. As long as no restructuring expert is appointed, it is in the debtor’s exclusive power to offer a restructuring plan. After a restructuring expert is appointed, they may offer a restructuring plan, but the debtor is still authorised to also propose a restructuring plan, but in In the Netherlands, in a WHOA procedure, restructur - ing experts are not appointed by default. This will be assessed in each procedure. An observer or restruc - turing expert may be appointed in a WHOA procedure. Restructuring Expert The Bankruptcy Act mentions various rights and pow - ers of the restructuring expert. Typically, they will dis - cuss with shareholders and creditors the restructur - ing plan to be proposed. They are also authorised to request the amendment or termination of continuing agreements of the debtor, the declaration of a cool - ing-off period, or an early court ruling on key aspects of the restructuring plan. They can then also classify shareholders and creditors into different classes, sub - mit the restructuring plan for voting, and ask the court to confirm the restructuring plan. In carrying out their duties, the restructuring expert has extensive power to obtain information from the debtor. Observer The task of the observer is to supervise the formation of the restructuring plan, taking into account the inter - ests of the collective creditors. The observer does not have the power to propose a restructuring plan them - selves but does have extensive power to obtain infor - mation from the debtor. Furthermore, regarding sev - that case only via the restructuring expert. 4.5 The Position of Office Holders in Restructuring, Rehabilitation and Reorganisation
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