Published 7 August 2017
The Spanish legal framework to solve the financial distress of businesses was confined to formal insolvency proceedings until recently. However, since 2009, a number of amendments to the Spanish Insolvency Act (SIA) have created a menu of options to tackle the insolvency problem through non-formal or semi-formal solutions. Among these solutions, only collective ordinary refinancing agreements (Article 71 bis.1 SIA) are specifically foreseen as a valid joint option for several companies that belong to the same group. On the other hand, only another solution relies on mediation: it is the case of out-of-court agreements on payments (hereinforth, OCAPs, Articles 238 and sub. SIA). Contrarily to the other solutions that the SIA provides (which are implicitly designed for big companies), the access to out-of-court agreements on payments is restricted to small or medium sized companies (SMEs) and to individuals. The purpose of this paper is to determine whether out-of-court agreements on payments, despite being designed for SMEs, might be also used jointly by companies belonging to the same group.
Although groups of companies normally resort to the other out-of-court mechanisms (whose design is far more suited for big enterprises), we will argue that out-of-court agreements on payments should not be automatically discarded as a way to jointly address the insolvency of several companies that belong to the same group. Once the admissibility of joint out-of-court agreements on payments (hereinforth, JOCAPs) has been conveniently argued, this paper will address two specific -yet essential- issues: (a) firstly, with regard to the procedural aspects regarding the filing of the petition, we will determine the competent authority before whom the joint petition should be filed; (b) secondly, we will ascertain the admissibility of appointing a sole mediator to manage the joint out-of-court proceedings. Regarding the latter issue, we will pay particular attention to the pros and cons that this option entails.
This paper will be part of the TDM Special Issue on "Comparative and International Perspectives on Mediation in Insolvency Matters". More information here: https://www.transnational-dispute-management.com/news.asp?key=1648