POLAND Law and Practice Contributed by: Karol Tatara, Paweł Kuglarz, Anna Czarnota and Mateusz Kaliński, Tatara & Partners Restructuring & Insolvency Law Firm
Current Polish law does not provide for the possibility to arbitrate insolvency or a restructuring case. How - ever, it is possible to use ADR for cases connected with insolvency or restructuring. 5.3 The End of the Liquidation Procedure(s) The proceedings may end in discontinuation or final completion, where the creditors are paid and satisfied. On the other hand, where there are insufficient funds to pay the creditors, the proceedings may be discon - tinued. 5.4 The Position of Shareholders and Creditors in Liquidation Creditors In Poland, creditors’ committees are much more pop - ular in restructuring proceedings than in insolvency proceedings. The members are selected and the committee is established by the judge-commissioner acting either ex officio where this is advisable, or in response to a petition filed by the bankrupt, no less than three creditors, or a creditor or creditors holding jointly no less than one fifth of the sum of receivable debts (with exclusions for affiliated entities and the acquirers of the receivable debts). The judge-commissioner can also change the members of the committee. The creditors’ committee consists of five members and two deputies, appointed from among the creditors of the debtor, who are participants in the proceedings. In rare and smaller proceedings (less than seven creditors), the number of members may be three (and one deputy). The creditors’ committee assists the trustee, inspects the trustee’s acts, examines the status of bankruptcy estate funds, authorises acts which may not be per - formed other than with the committee’s consent, and gives its opinion on other matters if required to do so by the judge-commissioner or the trustee. When discharging its duties, the committee of creditors is guided by the interest of all the creditors. The sale of assets is managed by the trustee, who should report the current status to the judge-com - missioner.
The trustee needs the consent of the creditors’ com - mittee to: • continue to run the enterprise, if it is to be contin - ued for more than three months from the date of the declaration of bankruptcy; • forgo the sale of the enterprise as a whole; • make an unrestricted sale of property included in the bankruptcy estate; • take out loans or credits, or encumber the bank - rupt’s assets with limited rights in rem; and • recognise, waive or make a settlement in respect of disputed claims, and to submit a dispute to a conciliatory court for determination. No consent of the creditors’ committee is required for the sale of movable property where the estimated value, as shown in the inventory stock count, of all movable properties included in the bankruptcy estate is equal to or less than the equivalent of PLN50,000, as well as the sale of receivable debts and other rights within such value. A bankruptcy sale has an execution-sale effect, which means that the purchaser acquires assets free of claims and liabilities asserted against the debtor. Members of creditors’ committees can act with advis - ers, but should secure the funding themselves. A creditors’ committee member is entitled to the reim - bursement of necessary expenses resulting from their participation in a meeting of a creditors’ committee. The judge-commissioner may grant a member appro - priate meeting-attendance remuneration if it is justi - fied by the type and degree of complexity of the case and the extent of the work performed. Shareholders Shareholders’ rights are taken into account only in a situation where they are also creditors of the bankrupt, although their claims are at a lower level than those of other creditors. Third-party release is admissible on the grounds that the released property does not belong to the bank - ruptcy estate.
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