The debt restructuring judge at the competent Cantonal Court in Zug provisionally approved the debt-restructuring moratorium petitions by order dated 27 January 2012.
A provisional debt-restructuring moratorium has been granted to the following companies:
- Petroplus Holdings AG
- Petroplus Marketing AG
A further order of 30 January 2012 granted provisional debt-restructuring moratorium to Petroplus Tankstorage AG. Approval of a provisional debt-restructuring moratorium by a judge gives the debtor two months to consolidate the foundations of its case for petitioning for approval of the ordinary debt-restructuring moratorium. The provisional administrators help the judge to put together the bases for a decision by providing a report and safeguarding creditors’ rights pending the judge’s final decision. Yes, though it can be challenged at the Higher Court of the Canton of Zug within 10 days. Such challenge has no suspensive effect unless the Cantonal Higher Court rules to the contrary. The debtor whose debt is being restructured. Furthermore, any creditor may challenge the appointment of the administrators. It means that execution is no longer possible against the debtor’s assets in Swiss sovereign territory.
Nevertheless, execution is still possible in the form of realisation of pledges, where claims are secured by charges on real property, though such pledges cannot be realised provisionally. In principle a debt-restructuring moratorium in Switzerland is also intended to cover assets abroad. Whether its effect is recognised abroad is decided according to the applicable foreign law. In principle, no. To dispose of assets the debtor now needs the consent of the administrators and, in some cases, the approval of the judge. However, the debtor can and must engage in all its daily business activity in compliance with the orders of the debt rescheduling judge and is subject, in doing so, to the supervision of the administrators. They are Mrs Brigitte Umbach-Spahn and Mr Karl Wüthrich, attorneys-at-law, of the law firm of Wenger Plattner, with offices in Basle, Berne and Zurich (8700 Küsnacht-Zürich). Yes, it can be challenged by appeal to the Higher Court of the Canton of Zug. Such appeal in principle has no suspensive effect. The role of provisional administrators have provisionally been assigned to Mrs Brigitte Umbach-Spahn and Mr Karl Wüthrich, attorneys-at-law. They will supervise the debtor’s business activity. The provisional administrators must also assess the debtor’s "asset, profit or income situation … and prospects for restructuring.” They have a maximum of two months to report to the judge on their findings. The judge then has to approve the petition for a debt-restructuring moratorium provided, on the strength of his assessment of the situation, he considers that conclusion of a debt restructuring agreement is feasible. It is the judge’s duty to decide, from the petition for the debt-restructuring moratorium and the provisional administrators' report and, where applicable, having heard other persons, whether finally to approve the petition for the debt-restructuring moratorium. The scope for attachment available to the Swiss judge and provisional administrators may be restricted by order of foreign courts and authorities. Conceivably this may lead to conflicts of jurisdiction. The law requires that, after imposition of the debt-restructuring moratorium, the provisional administrators shall compile an inventory of all financial claims of interested parties. In principle a review of the substance of these claims only takes place at a later stage of the debt-restructuring proceedings. Only creditors expressly mentioned in the law (especially employees) are entitled to privileged treatment. The principle of equality of treatment, provided by statute, does not allow the administrators to give preferential treatment to claims of individuals or groups of persons, regardless of the urgency of such treatment from the creditor’s point of view. The judge’s order specifies the method of calculation of the fee. Final invoices require approval by the judge before payment. In restructuring cases the debtor normally makes the administrators an advance for the costs of their work. The judge’s order allows the debtor to pursue its ordinary business, in order to preserve the value of its assets as far as possible. No extraordinary business must be transacted. The provisional administrators' primary task is to provide the judge with the information necessary for a decision on the final moratorium within two months. This may include identification of transactions which are open to challenge or void and which would therefore be eligible to increase the debtor’s assets. The administrators must also secure as many of the debtor’s valuable items as possible for the creditors.
Instigating proceedings is not one of the administrator’s tasks unless such proceedings are necessary to secure the debtor’s assets. The debtor may prepare a social welfare plan if it is contractually bound to do so and it does not give rise to any unequal treatment of creditors. In principle there is no provision for social welfare plans in the Debt Prosecution and Bankruptcy Statute. In reorganising the debtor’s business, the management will bear in mind that a business plan with prospects of success is important to the decision on eligibility for debt rescheduling. The debtor may grant security to new creditors with free assets if it concludes that the contribution of such funds is in the overall interest of all creditors. The consent of the debt restructuring judge is essential in such cases.  To view PDFs, you need the Adobe Reader. Click on the image to download it. |
