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With publication in the Federal Law Gazette on December 29, 2020 of Reorganization and Insolvency Law Development Act, SanInsFoG From January 1, 2021, companies that have got into a crisis and have "only" an impending insolvency but have a functioning business model can now negotiate an agreement with creditors within the legally protected framework. The core component is the restructuring plan, with which the debtor can autonomously implement a restructuring concept agreed with the creditors; There is an enforcement and realization block until the plan is accepted. The article 1 thatCorporate Stabilization and Restructuring Act - StaRUG at a glance:
content (in particular Part 2 as the preventive restructuring framework required by the EU in 2019)
- Part 1: Early crisis detection and management, §1
- Part 2: Stabilization and restructuring framework, §§ 2-93
- Part 3: Reorganization moderation, §§ 94-100
- Part 4: Early warning systems, §§ 101-102
Decision making (in the parliamentary legislative process)
- The position of employees in the company remains unaffected, Section 92
- The court can set up a creditors' advisory board, which must then decide unanimously, § 93
- The stricter liability regulations for managers of the draft law have been deleted
- The possibility of early termination of the draft law has been deleted
- The planned concentration of judicial competences in the draft law has been deleted
Arguments (who speak against abuse)
- 75% approval in the individual creditor classes is required
- The creditors are not placed in a worse position than in the situation without a restructuring plan
- With a "comparative calculation" it must be possible to prove that the debt waivers are better than with other options
What is the goal of theStaRUG?
- The reorganization of a company as well as the avoidance of a probable bankruptcy; The condition of impending insolvency should be able to be negotiated independently in order to provide the company with liquidity again; A relevant checklist for recognizing a corporate crisis in a self-check is published on the BMJV website
- The district court is the restructuring court; There is no formal opening of proceedings; The judicial accompaniment is not compulsory, but an advantage, since the plan can only be effective against the refusing creditors through a judicial confirmation
- Publication is not planned, but possible on request
- The "principle of self-administration" applies to the managers employed in the company
- With the creditors, who are divided into groups (equal treatment within the group), a restructuring plan (causes of the crisis, restructuring measures, comparative calculation, determination of the restructuring claims or separation entitlements, etc.) is drawn up; He can intervene in the claims of the affected creditors, such as deferral or haircut
What are the advantages over bankruptcy?
- Not anchored in the insolvency order, but as the Corporate Stabilization and Restructuring Act (StaRUG); The restructured company has no “insolvency stigma” towards customers, suppliers, employees and other stakeholders
- The execution and realization block is designed for a maximum of 4 months, i.e. during this period the creditors are denied access to assets
- For the adoption of the restructuring plan, 75% approval of the creditors involved in the created creditor class is sufficient; As a result, minority creditors cannot hinder the restructuring
- A restructuring moderator can be used to orchestrate the interests of individual creditors; The use of a restructuring officer is only considered in exceptional cases
- The contents of the restructuring plan are published as a checklist on the BMJV website
What are the redevelopment limits of the StaRUG?
- No possibility to intervene in employee contracts and pension obligation agreements
- No use of bankruptcy money to temporarily reduce personnel costs
- No termination of contracts with third parties
What can we as restructuring consultants do?
- Professional sounding out of the restructuring options, extrajudicial restructuring, stability and restructuring frameworks as well as insolvency (mainly as self-administration), especially taking into account the comparative calculation required by the legislator
- Competence in the moderation of complex creditor relationships
- Mastery of the structure, modeling and moderation of integrated planning in order to be able to make decisions on a valid database
- Make adjustments to the business model based on the value drivers in the company
The stability and restructuring framework is a pragmatic (financial) restructuring instrument (the debtor takes the initiative) that is complex and requires a lot of advice. It will find its application by overcoming chord disruptors (people of small faith who oppose a majority decision). The implementation is not public and the companies are not provided with a bankruptcy stigma. In companies with a functioning business model, debt relief takes place discreetly behind the scenes with individual groups of creditors. For a successful reorganization, structured and well-planned preparation is an indispensable prerequisite for a restructuring consultant like theQuest Consulting AG, can also be accompanied by our SME advice.
Federal Law Gazette SanInsFoG
As of January 2nd, 2021
Now it is here, the Austrian one Restructuring order(ReO); the counterpart to the StaRUG
The ReOshould give debtors the opportunity to apply for the opening of judicial, but not public, restructuring proceedings in the event of a "probable bankruptcy".
- There must be a probable insolvency, especially if there is a threat of insolvency or the equity ratio is <8% and the fictitious debt repayment period is> 15 years (these are now the classic URG key figures that have not really worked in practice)
- A restructuring plan and concept is necessary
- Implementation in self-administration
- A restructuring officer (this can also be a legal person or a registered partnership) can be appointed
- Formation of creditor classes; Approval of all groups with a 75% majority of the capital recorded
- No interference with contract and employee rights
- Suspension of enforcement for a maximum of 3 months
The law looks a bit old-fashioned and is more of an old-school settlement procedure. The competition for the favor of an international restructuring location like the Netherlands or Germany is planning is not likely to be the intention.
to the ministerial draft legal text
As of February 24, 2021
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