POLAND Trends and Developments Contributed by: Karol Tatara, Paweł Kuglarz, Anna Czarnota and Mateusz Kaliński, Tatara & Partners Restructuring & Insolvency Law Firm
Polish lawyers specialising in restructuring and insol - vency law (ie, attorneys-at-law and trustees) frequent - ly have to visit the court in person, sometimes just to take photos of case files, in order to keep up to date. Despite the pitfalls, legal practitioners are attempting to access the register to conduct proceedings, which takes a lot of time – much more than would be neces - sary if the register functioned correctly. Absurdly, the written procedure is no longer valid, so the only option is to use the register. However, some courts lend a compassionate ear to the request of the lawyer, and allow for the written procedure as well. In Poland, the anti-crisis shield 4.0 introduced digi - talisation of proceedings and regulations regarding simplified restructuring proceedings. According to Article 19.3, if it is technically possible, voting dur - ing the creditors’ meeting may be conducted by means of electronic communication. This particularly includes transmission of the creditors’ meeting in real time, enabling creditors to speak during the meet - ing while present at a location other than that where the creditors’ meeting is being held. The creditors’ participation in the meeting may only be subject to such requirements and restrictions as are necessary to identify the creditors and ensure the safety of elec - tronic communication. The COVID-19 pandemic can be said to have accel - erated these changes, and it is hoped that this trend will continue. Organisational changes in the judiciary During an informal debate regarding possible amend - ments to insolvency and restructuring law, the govern - ment did not say “no” to the proposed organisational changes in the judiciary. Since the introduction of the Restructuring Law in 2015, several experts and pro - fessional organisations have called for a radical yet justified change in the organisation of the restructur - ing courts. The change should focus on transferring complex restructuring cases to the regional courts, while leaving consumer bankruptcy cases at the level of the district courts. District courts comprise the first instance, whereas regional courts comprise the sec -
ond instance, although they are the first instance for more complex cases. This could make judgments in restructuring cases more homogeneous and create a clear promotion path for experienced judges, who will continue to decide bankruptcy and restructuring cases at the higher-level courts. If the regional courts also decide restructuring cases, the best judges will not face a dilemma over whether they should stay at the district court or accept promotion to the regional court, not knowing what type of cases they will get to decide on a day-to-day basis. Unfortunately, the proposed changes have not yet entered into force but it is hoped that they will in the coming years. Professionalisation of restructuring advisers Due to the rapidly growing number of restructuring proceedings, especially consumer bankruptcy cases, there is a need to make restructuring advisers more professional. A trustee can no longer handle a case by themselves, because the latest amendment to the Bankruptcy Law imposes new and arduous obliga - tions on them. For example, all bankruptcy case files must from now on be kept by the restructuring adviser acting as a trustee (administrator, receiver) in their own office. This obligation has been moved from the courts to the trustee’s office. Moreover, the restructuring adviser now has to be able to show the case files to all the parties that are interested in the proceedings, at their request, and the law clearly states that the restructuring adviser’s office must accept the creditor’s lodgement of claims. The digitalisation of proceedings will only enhance this trend, because it will be practically impossible for the restructuring adviser to personally handle all aspects of the proceedings and cases. Thus, restructuring advisers will most probably have to hire additional staff to run such an office and obtain good digital and telecommunication tools, as required by the changes in the law. The EU Restructuring Directive requires constant pro - fessional development of restructuring advisers. To
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