Introduction - The Dutch Perspective on Restructuring
The Dutch suspension of payments is a formal insolvency proceeding, in place since the late 19th century, with the aim of restructuring viable but distressed companies and businesses. Currently, a legislative process is on-going for adopting the Wet homologatie onderhands akkoord (Act on confirmation of extrajudicial restructuring plans, hereafter referred to as the “WHOA”), legislation that represents a significant reform of the current corporate restructuring proceeding. The WHOA has been drafted in anticipation of the PRD 2019/1023 and is inspired by both Chapter 11 of the US Bankruptcy Code and the UK Scheme of Arrangement. It has been prepared not only in view of and in line with the PRD, but also represents a shift in policymaking in the Netherlands with the aim of promoting the possibilities for restructuring economically viable but financially distressed businesses. The WHOA includes a distinction between a non-public restructuring process, where there is no notification of the proceeding in the insolvency and trade registers, and a public restructuring process, which does involve such notifications. Only the latter will be included in Annex A of the EIR Recast. The restructuring plan may regard the rights of both creditors and shareholders, although it does not include workers’ claims. The WHOA provides for a cross-class cram-down for the first time in Dutch insolvency law.