ROMANIA Law and Practice Contributed by: Stan Tîrnoveanu, Alexandru Iorgulescu, Laura Retegan and Viorica Clima, Zamfirescu Racoți Vasile & Partners Attorneys At Law
reorganisation procedure are published in the Insol - vency Procedure Bulletin. The documents are sub - mitted to the case file and are communicated to the creditors present in court at the hearings. The quar - terly financial statements drafted in the reorganisation procedure are presented to the creditors’ committee. Role of Shareholders Shareholders, associates or other limited liability members are prohibited from intervening in the man - agement of the activity or in the administration of the debtor’s assets, with the exception of the express and limited cases provided by law and mentioned in the reorganisation plan. Claims of Dissenting Creditors The receivables of a particular class of creditors may be modified by means of the reorganisation plan, even if the creditors in question voted against the plan. The only conditions are that all the categories must be treated fairly, and that they should not receive less in the reorganisation procedure than they would have received in the bankruptcy procedure. Priority New Money New money investments or loans can be secured by assets of the company that are free of any liens and securities, and can benefit from a super-priority. Determining the Value of Claims and Creditors It is not possible to use the statutory process as a forum for determining the value of claims and those creditors with an economic interest in the company. Third Party/Non-Debtor Releases Under Romanian law, the concept of third-party/non- debtor release is recognised only in relation to the debtor itself, the members of its economic interest group, and the partners in general partnerships or lim - ited partnerships, and only by means of a reorganisa - tion plan (which will specify the extent to which such persons are discharged from liability). In the case of limited liability companies, there is no statutory provision regulating a potential release of liability for such persons. Nevertheless, the reorgani - sation plan may include, as a restructuring measure, that one of these persons should undertake payment
of the outstanding claims. Such payment would not, however, exonerate that person from potential liabil - ity for the acts committed in relation to the debtor company. In the event that such liability action against the administrators, shareholders or any person guilty for the state of insolvency is admitted, the amounts recovered will be used to pay the receivables accord - ing to the payment schedule provided in the plan. Regarding guarantors, the judicial administrator may enter into settlements and release guarantors from their obligations. However, such settlements require confirmation by the syndic judge, who will review the transaction solely from the perspective of legality, without assessing its opportunity. Arbitration Instead of Court Proceedings Statutory restructuring proceedings fall within the exclusive jurisdiction of the competent courts. There - fore, the principal actions and decisions within the restructuring process (eg, the opening of proceedings, confirmation of a restructuring plan and supervision of its implementation) cannot be referred to arbitration. However, arbitration is not entirely excluded from the restructuring context. Contractual disputes or patrimonial claims that have nothing to do with the restructuring proceedings (eg, claims arising under commercial contracts concluded by the debtor prior to the commencement of restructuring) may still be subject to arbitration. 4.3 The End of the Restructuring, Rehabilitation and Reorganisation Procedure Completion of the Reorganisation Plan If the confirmed plan is carried out according to its provisions, the syndic judge will close the procedure and order the return of the debtor to the normal busi- ness circuit. Fairness of the Plan A restructuring or reorganisation plan or agreement among creditors is subject to an overall “fairness” test for correct and equitable treatment. Even though the creditors accept the plan, the court must confirm it. Should a reorganisation plan be accepted by the creditors and confirmed by the judge, the debtor’s
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