Bankruptcy and restructuring

GESSEL’s litigation practice provides comprehensive legal support at all stages of bankruptcy and restructuring proceedings, and also in their run-up (analysis of prerequisites, assessment of potential personal liability of management board members).

Our lawyers have had hands-on experience in this regard – of the disputes they advised on over the years, some involved distressed assets and insolvencies. We have advised receivers, bankrupt enterprises / debtors, creditors, and members of management. While working on the side of the indebted enterprise, we monitor the progress of bankruptcy proceedings, and we make sure that management board members continue to duly perform their duties without exposing themselves to civil, tax and/or criminal liability.

When advising on bankruptcies and restructurings, the core members of our practice liaise closely with other relevant professionals within GESSEL, particularly in the fields of mergers and acquisitions, company law, tax law, employment law, banking, and finance. Drawing on their input, we can not only support Clients before the courts, but also draw up, negotiate, and implement standstill agreements, arrangements with creditors, and bilateral as well as multilateral debt restructurings.

  • Court restructuring – We provide advice at all stages of the restructuring process.

We advise at the stage of deciding to file for bankruptcy and in choosing the optimum procedure (proceedings for approval of an arrangement / fast-track arrangement proceedings / arrangement proceedings / court-supervised restructuring proceedings). A well-informed decision in this regard increases the chances of a successful outcome as well as decreasing the risk of personal liability of management board members.

Our lawyers represent Clients at all stages of the relevant proceedings, from drafting of the application for initiation of restructuring proceedings onwards – before the courts as well as vis a vis creditors. When advising a creditor, meanwhile, we help ensure that the creditor’s interests are duly reflected in the list of liabilities and attend to them in the context of acts in law by the debtor and securities instituted upon the debtor’s assets.

We also provide general legal advice on restructuring law in all its aspects, drafting opinions in reply to specific questions in this area.

  • Restructuring outside the courts – Especially here does restructuring become a highly complex process, and GESSEL’s trademark multi-disciplinary approach is even more called for.

We advise on financing restructurings – on all sides, representing creditors, debtors, insolvent enterprises, and potential purchasers. Our lawyers have experience devising the legal and tax structures of receivables sales and purchases; we have worked with various types of securities, drafted restructuring agreements, standstill agreements, and creditor agreements, advised on securitisation, prepared issues of bonds and investment certificates, and assisted in establishment of investment funds (including non-standard closed-end securitisation investment funds) as well as erecting the legal framework for cooperation with investment funds.

Naturally enough, we advise on employment restructuring, advising on individual and group redundancies, transfers of employing establishments, and employee outsourcing.

GESSEL’s traditional focus on corporate and commercial law enables us to attend to complex corporate, organisational, and asset restructuring. We advise on all and sundry transactions involving transfers of shares and of business enterprises (or organised parts thereof).

Our in-house tax specialists assist with the tax aspects of restructuring and with assessing eligibility for public aid. We also implement compliance programmes in the context of restructuring.

  • Bankruptcy – We advise on all stages of bankruptcy proceedings on the debtor as well as creditor sides.

We assess the legal status of companies and of business enterprises from the perspective of prerequisites for announcing insolvency and for bankruptcy filings. In such an instance, the priority is to enable the company to carry through with bankruptcy proceedings while affording legal comfort for members of its management board.

We advise on drawing up of the bankruptcy filing, also in pre-pack variants, analysing all the relevant documentation and attending to the technicalities of any asset sales in pre-pack scenarios.

We represent debtors in bankruptcy proceedings, providing support in day-to-day dealings with the receiver and monitoring her actions, attending hearings, and managing the ongoing correspondence. We work to defend debtors against applications for announcement of bankruptcy lodged by their creditors.

We represent creditors in bankruptcy proceedings, especially as regards registering their receivables, objections to the list of liabilities, and drafting of the relevant correspondence. We work to enable the Client to collect as much of his receivables as possible, also as regards effective enforcement of any securities instituted on the bankrupt entity’s assets.

We also handle cases centring on consumer bankruptcy, a relatively new construct under Polish law, especially ones involving former directors and former entrepreneurs.

  • Personal liability of directors in connection with bankruptcy – we represent managers as well as creditors in litigation centring on insolvency of companies, including cases concerning liability of directors vis a vis creditors (art. 299 of the Polish Commercial Companies and Partnerships Code, art. 21 of the Polish Bankruptcy Law, and art. 116 of the Tax Ordinance), pronouncement of a ban on business activity and/or on holding certain positions within companies (art. 373 of the Bankruptcy Law), criminal charges (art. 568 of the Commercial Companies and Partnerships Code, arts. 300 – 302 of the Polish Criminal Code).

GESSEL’s experience to date includes:

  • Representation of two members of the management board of an e-commerce company in proceedings concerning a proscription on business activity;
  • Support to an entity active in the real estate sector in passage from court-appointed restructuring into a bankruptcy procedure while observing the Client’s strategic aims;
  • Representation of a food industry leader in a case brought by a receiver concerning ineffectiveness of a mortgage;
  • Advice to a Polish media house on its bankruptcy filing and the ensuing proceedings, liaising with its interim receiver;
  • Debt restructuring at an FMCG company and filing for its bankruptcy;
  • Advice to a Polish company from the medical sector in connection with insolvency proceedings in Switzerland;
  • Advice to a construction company in its bankruptcy proceedings – defence against an application for announcement of bankruptcy brought by its creditors;
  • Comprehensive legal support to an infrastructure company in negotiations with its creditor banks, selection of the optimum restructuring model, and preparation of the bankruptcy filing;
  • Corporate debt restructuring via purchase of receivables from a bank consortium through an SPV financed with a bond issue by closed-end investment funds, restructuring of the investment funds’ involvement via a debt-for-equity swap;
  • Representation of a creditor in the context of bankruptcy of a brokerage house, including drawing up of the liabilities list;
  • Advice to a closed-end investment fund in a transaction involving acquisition of receivables from banks and a debt-for-equity swap;
  • Negotiation of a standstill agreement with a consortium of over 20 banks prior to filing for bankruptcy;
  • Advice to a company from the electronics industry on negotiation of a standstill agreement with a bank consortium prior to filing for bankruptcy;
  • Representation of a company vis a vis its banks in the process of debt restructuring;
  • Advice re performance of restructuring agreements with respect to issue of new shares;
  • Representation of a company vis a vis a bank consortium in connection with a restructuring agreement involving issue of secured bonds and with debt refinancing by a new bank;
  • Legal advice in proceedings concerning liability of management board members under art. 299 of the Commercial Companies and Partnerships Code and under a fraudulent conveyance claim (art. 527 of the Civil Code) in connection with insolvency.

GESSEL’s bankruptcy and restructuring practice is headed by Piotr Schramm, partner.