FINLAND Law and Practice Contributed by: Timo Lehtimäki, Niklas Thibblin, Essi Hietaoja and Oona Honkamaa, Waselius
Company Restructuring In company restructuring, the administrator has an obligation to negotiate with (inter alia) the known creditors when preparing a proposal for the restructuring programme. Also, secured creditors who represent a minimum of 5% of all the secured claims may propose an alterna - tive restructuring programme to the court. If a pledgee or, in particular, an entire group of credi - tors opposes restructuring, the restructuring programme can only be accepted by the court provided that certain specific requirements are satisfied. The court may accept the restructuring pro - gramme (with some exceptions): • with the approval of all known restructuring creditors; or • with the approval of each class of creditors (in general, secured and unsecured creditors and beneficiaries of floating charges form different classes of creditors), with such approvals to be obtained in the manner as set out in the Restructuring Act. On a general level, a class of creditors is deemed to have approved the restructuring programme if the programme is supported by: • more than 50% of the creditors in number that took part in the voting within such class of creditors (creditors with large receivables are typically kept in separate classes from creditors with small receivables); and • creditors representing more than 50% of the aggregate monetary value of the claims repre - sented in the voting of such class of creditors. However – and while in practice this should be very unlikely – where secured creditors and floating charge creditors oppose the restructur -
at an early stage, before becoming insolvent. Since the commencement of formal restructur - ing proceedings usually triggers a moratorium and involves an administrator, creditors gener - ally have more room to manoeuvre outside for- mal proceedings. From a structuring perspective, having the group structure (and suitable enforcement point) go through a jurisdiction with tried and tested out- of-court restructuring processes should be con - sidered. 7.9 Dissenting Lenders and Non- Consensual Restructurings Bankruptcy Proceedings In bankruptcy proceedings, the creditors exer - cise their powers at the meetings of creditors, with the bankruptcy trustee acting as chairper - son. In large bankruptcies, the creditors appoint a creditors’ committee to supervise and assist the trustee. This provides a smoother process since the bankruptcy trustee is in control of the dissenting lenders. The trustee must call a meeting of creditors whenever necessary to address questions regarding the management of the bankruptcy estate, and a final meeting at the conclusion of the bankruptcy proceedings. Decisions at the meetings of creditors are made as majority decisions – ie, the opinion represent - ing more than 50% of the votes of the creditors participating in the vote will prevail. The number of votes that each creditor holds is proportional to the size of the creditor’s claim – ie, one vote per euro (excluding subordinated creditors, if the expected liquidation proceeds are clearly insuffi - cient to satisfy such creditors). A conflict of inter - est may prevent a creditor from participating in a particular decision.
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