PORTUGAL Law and Practice Contributed by: Manuel Magalhães, Mafalda Ferreira Santos, Francisco Boavida Salavessa and Maria José Lourenço, Sérvulo & Associados
it is maintained, and act during the process in such a way as to ensure that in the end the creditors approve the plan that allows the business to be revitalised. The provisional judicial administrator also has the duty to receive claims, draw up the provisional list of claims, supervise negotiations between the debtor and creditors, authorise the carrying out of particularly relevant acts, receive the vote on the plan and confirm its approval/non-approval. Within insolvency proceedings, the insolvency admin - istrator has several duties, including the following: • to seize, administer and liquidate the assets and rights comprising the insolvent estate (if applica - ble); • to decide whether to terminate ongoing contracts on the date of the declaration of insolvency; • to obtain the consent of the creditors’ committee or creditors’ meeting when legally required; • to draw up the insolvency plan (if applicable); • to represent the insolvent in out-of-court and judi - cial proceedings regarding all patrimonial-related subjects relevant to the insolvent estate; and • to annul acts detrimental to the insolvent estate (“claw-back actions”). Judicial administrators report to the court, the credi - tors’ assembly and to the creditors’ committee, and are liable when, in culpable breach of their legal and statutory duties, they cause damage to the insolven - cy creditors and/or the insolvent estate. The liability attributed to judicial administrators can be statutory, civil and/or criminal. The creditors’ meeting The creditors’ meeting has some decision-making powers, including: • its responsibility to decide whether the insolvency proceedings will continue, with a view to liquidat - ing the assets, or whether they will continue with a view to approving a recovery plan; and • to approve or reject the debtor’s insolvency plan. If a creditors’ committee has not been appointed, the creditors’ meeting will also consent to the practice of
legal acts that are of special importance to the insol - vency proceedings (such as the sale of the company, its establishments or all its stock, the purchase of real estate, the execution of new long-term contracts, etc). The creditors’ committee The creditors’ committee’s main functions are: • supervising the work of the insolvency administra - tor and co-operating with the administrator in the performance of their duties; and • consenting to the practice of legal acts that (according to the CIRE) are of particular importance The mediator provides technical assistance within the RERE procedure, particularly in the negotiations phase. 2. Creditors 2.1 Types of Creditors According to the CIRE, there are two criteria by which to classify creditors: • the moment of claim constitution (claims against the insolvent estate v insolvency claims); and • the nature of the claim (secured, preferential, com - mon or subordinated). Claims Against the Insolvent Estate v Insolvency Claims As a rule, the structural difference between claims against the insolvent estate and insolvency claims is based on the following criterion. to the insolvency proceedings. The business recovery mediator Claims against the insolvent estate Claims against the insolvent estate are: • the court fees of the insolvency proceedings; • the insolvency administrator’s fees; • debts arising from the administration, liquidation and distribution of the insolvent estate; and • debts arising subsequent to the declaration of insolvency and from agreements that cannot be or have not been terminated by the insolvency admin -
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