GRR Insight ' Americas Restructuring Review 2020

Publication Date02 November 2021
SubjectCorporate/Commercial Law, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Insolvency/Bankruptcy
Law FirmGuzman Ariza Attorneys At Law
AuthorMr Fabio J. Guzm'n Saladín and Pamela Benz'n Arbaje

Preface

Welcome to the Americas Restructuring Review 2020, one of Global Restructuring Review's annual, yearbook-style reports.

Global Restructuring Review, for anyone unfamiliar, is the online home for international restructuring specialists everywhere, telling them all they need to know about everything that matters.

Throughout the year, GRR delivers pitch-perfect daily news, surveys and features, organises the liveliest events (under our GRR Live banner) and provides our readers with innovative tools and know-how products.

In addition, assisted by external contributors, we curate a series of regional reviews - online and in print - that go deeper into local developments than our journalistic output is able. The Americas Restructuring Review, which you are reading, is part of that series. It recaps the recent past and adds insight and thought-leadership from the pen of pre- eminent practitioners from all across the Americas.

Across 17 chapters and 208 pages, this edition provides an invaluable retrospective from 32 authors. All contributors are vetted for their standing and knowledge before being invited to take part. Together, our contributors capture and interpret the most substantial recent international restructuring events of the year just gone, supported by footnotes and relevant statistics. Other articles provide a backgrounder - to get you up to speed, quickly, on the essentials of a particular jurisdiction.

This edition is bigger than ever and covers Argentina, Bahamas, Bermuda, Brazil, Canada, the Cayman Islands, Chile, Dominican Republic, Mexico and the US (from several angles). It also includes two chapters on sovereign debt.

Among the nuggets you will find:

  • a case study of the Noble Group's restructuring (the chapter of the Bahamas);
  • a prediction on when Brazil's fabled new restructuring law might see the light of day;
  • a request to Mexico's ruling party to amend the Concorso Law;
  • clarification on when a foreign-to-foreign transfer may be 'too foreign' for the purposes of US bankruptcy law;
  • analysis of the (somewhat) contradictory Chapter 15 decisions in Oi, Agrigkor and QCOG; and
  • a description of some new stratagems hedge funds and private equity funds have found to get high returns in rescue and much much more. We hope you enjoy the review.

On behalf of GRR, I would like to thank the review's editors Richard Cooper and Lisa Schweitzer, of Cleary Gottlieb Steen & Hamilton, for the direction and energy they've given, and my colleagues Jon Allen and Adam Myers, in our production department, for changes to our design that provide a digest of each chapter for those short of time. Thanks to them, this is the finest review we've produced.

In summary

This chapter discusses the DR's Insolvency Law, which came into force in February 2017. It promotes and facilitates company reorganisation. Most of its procedures, including nullity claims, will be used during restructuring or negotiation, not liquidation.

A restructuring request can immediately transition from verification to liquidation, without going through reorganisation, disabling any nullity claim. A recent decision held that creditors cannot file nullity claims during liquidation, even in the event of possible voidable transactions.

Further, most insolvency officials are very wary on how courts assess their fees. Owing to lack of knowledge, most courts do not authorise advancement for officers' fees, which end up advancing and bearing all expenses incurred.

Discussion points

  • Unfeasibility of nullity claims during liquidation
  • Reserved for conciliator
  • No appeal
  • Officers' fees
  • Criteria to grant advance payment of fees
  • Effects of appeals of liquidation decisions

Referenced in this article

  • Insolvency Law 141-15 is the principal legislation that governs insolvencies and restructuring procedures in the Dominican
  • Rules of application of Law 141-15 - Executive Decree 20-17.
  • Liquidation of Pawa Dominicana
  • Liquidation of 33 Renova SRL
  • Liquidation of Mones Packaging Solutions Mopack
  • Reorganisation of Munné, SRL
  • Reorganisation of Arconim Constructora, SA

Introduction

Insolvency Law 141-15 is the principal legislation that governs insolvencies and restructuring procedures in the Dominican Republic. The Law was enacted in August 2015 but only entered into effect on 7 February 2017, after an 18-month transitory period. Furthermore, the rules of application of the Law 141-15 were signed into law by Decree No. 20-17 on 13 February 2017.

This means that the Dominican insolvency regulation has been valid for only two and a half years. Nevertheless, creditors and debtors are deciding to lean on the country's reorgani- sation and bankruptcy statue to protect their credits or assets.

To provide an illustration of the insolvency practice in the Dominican Republic to date, we will refer to the statistics provided by the court. In 2017 and 2018, there were 25 restructuring requests, out of which 19 were dismissed and only six were accepted; from January to July 2019, there were eight requests and only two were admitted by the court.

Of the eight active cases, five are currently in the liquidation phase (Pawa Dominicana, Trevigalante, Mones Packaging Solutions Mopack, Caribbean Recycling and 33 Renova), two are still in the negotiation and conciliation phase of the restructuring process (Munne and Arconim Constructora) and one was rejected after the creditor who requested the liquidation filed a transactional agreement signed with the debtor.

Between 2018 and 2019, there have been eight appeals issued against decisions issued...

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