ROMANIA Law and Practice Contributed by: Stan Tîrnoveanu, Alexandru Iorgulescu, Laura Retegan and Viorica Clima, Zamfirescu Racoți Vasile & Partners Attorneys At Law
debtor’s right of administration. The debtor will only be able to carry out the activities necessary for the liquidation procedure. After removal, the mandate of administrators/directors is reduced to representing the interests of shareholders/associates. The credi - tors’ receivables that were subject to haircuts through the reorganisation plan are reinstated to their previous value, and the creditors will not be required to return the amounts collected in reorganisation. All receiva - bles become due on the opening date of the bank - ruptcy procedure. The guarantees established for the performance of the reorganisation plan (eg, for new money) are maintained, but all the contracts/opera - tions that were not provided in the reorganisation plan are presumed to be fraudulent. Responsibilities of the Liquidator The liquidator is the main body of the bankruptcy pro - cedure, and is responsible for the following: • managing the activity of the debtor in bankruptcy; • analysing the claims and publishing the tables of receivables; • carrying out the inventory and taking conservation measures for the assets; • introducing actions for the annulment of fraudulent acts and operations; • following the collection of debts; • conducting the sale of assets; and • drafting the distribution report. Responsibilities of the Special Administrator The special administrator, who represents the inter - ests of the shareholders, has limited powers in bank - ruptcy and participates in the inventory, receives the final report and the last financial statement, and takes part in settlement of the objections and approval of the final report. Responsibilities of the Syndic Judge The syndic judge is tasked with: opening the simpli - fied bankruptcy procedure, approving/rejecting the bankruptcy request as a consequence of non-per - formance of the plan or failure to pay current debts, and handling the contentious matters arising from the liquidation (objections/challenges related to the sale of assets and the distribution of amounts). The syndic judge is also responsible for discharging the liquidator,
closing the procedure and ordering the de-registration of the debtor from the Trade Register. Responsibilities of the Creditors Creditors convened in the creditors’ assembly decide on all the opportunity aspects of the liquidation. They establish the type of sale and approve the sale regula - tions and even the value for which the assets will be sold. The main purpose of the liquidation is to satisfy the largest proportion of receivables possible, so the main interest pursued in this phase is that of the credi - tors. Status of Contracts/Agreements As a rule, all contracts/agreements by which the debtor carries out their business (both pre-insolven - cy and concluded in the observation/reorganisation period) cease on the date the bankruptcy procedure is opened. As an exception, some contracts may be maintained for a limited time during the bankruptcy period, to protect the assets and maximise the amount collected (eg, utilities, accounting services and secu - rity services). The law also authorises the liquidator to denounce any contracts concluded by the debtor, and assigns ongoing contracts to third parties, provided that those contracts were not concluded intuitu per - sonae, with the same goal of maximising the debtor’s estate. Arbitration Instead of Court Proceedings As a general principle, statutory insolvency proceed - ings fall within the exclusive jurisdiction of the com - petent courts and cannot be submitted to arbitration. This exclusivity is justified by the nature of insolvency, which involves the collective interest of creditors and the supervision of the court-appointed judicial admin - istrator or liquidator. Matters such as the opening of insolvency proceedings, the verification and registra - tion of claims, the approval of reorganisation plans, or the distribution of proceeds are therefore incompatible with arbitration procedure. However, this does not mean that arbitration is entire - ly excluded. Disputes of a contractual or patrimonial nature that are not connected to the insolvency (eg, disputes arising under commercial contracts con - cluded by the debtor prior to the commencement of insolvency) may still be referred to arbitration.
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