27 May 2021
R&I update – June 2021 – 4 of 4 Insights
On 1 January 2021, the German Act on Stabilization and Restructuring Framework for Business (StaRUG) came in to force as part of the German Act on Further Development of Restructuring and Insolvency Law (SanInsFoG). It contains several new pre-insolvency restructuring procedures, including a new preventive restructuring plan and corresponding protection of minority creditors.
StaRUG provides for the use of pre-insolvency restructuring plans in "imminent illiquidity" (drohende Zahlungsunfähigkeit). The aim here is to achieve an out-of-court preventive restructuring that considers different creditor groups while allowing for dissenting creditors to be overruled or crammed down. However, the principle of minority protection must also be taken into account.
Minority creditors that face being overruled by other creditors and are at risk of being in a worse position because of the plan may have the right to contest the preventive restructuring plan. These creditors may seek to not only be put in a better position under the plan, but also to "destroy" the whole plan and, by extension, its impact on all parties involved. This can only be achieved if the minority creditor complies with the specific provisions under StaRUG (including early communication of concerns regarding the plan).
Many of the new preventive restructuring plan's provisions are similar to restructuring plans in insolvency proceedings and may be applied in the same way, even though the circumstances prior to insolvency proceedings in imminent illiquidity scenarios is different. It remains to be seen whether the execution of preventive restructuring plans will be handled in the same way as "classic" insolvency restructuring plans by German courts.