Introduction - The Danish Perspective on Restructuring
Of key importance in considering the position of Denmark are Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union. Therefore, the Danish legislative framework as it currently stands is not covered by the EIR-Recast as per Recital 88. Nevertheless, Denmark is obliged to follow the provisions of the PRD as it is not covered by the opt out provided under Protocol No 22. Reflecting the German approach, the Danish legislative framework provides for a restructuring plan but only after a formal declaration of insolvency has been made. Therefore, our Danish contributor, as with our German contributor, does not describe the restructuring process as being preventive in nature. Thus, the issues surrounding the threshold beyond which a preventive restructuring process can be availed of are important. The stated policy aim is to enable the debtor to exit insolvency which is distinguished from preventing insolvency. The process by which the court can approve a restructuring plan seems quite constrained and less flexible than in other jurisdictions. In this context, the rules in relation to class formation are more constrained and as a consequence the concept of cross-class cram down-does not arise.