To this administrative procedure the companies that have economic difficulties and which capacity of payment is seriously affected, can request to the INDECOPI its declaration of insolvency and enter into a concursal procedure. Likewise, a creditor who has been affected by the crisis of the debtor can request to the INDECOPI the declaration of contest of this one. Whether the company is declared in insolvency, will take as an effect the protection of its patrimony and the unrecoverableness of its obligations.
As soon as the INDECOPI checks the legal requirements of admissibility, a resolution is issued declaring the above mentioned situation and order to a summons in order that the creditors of the company should present their requests of credit recognition.
The INDECOPI, across the Concursal Commission, check the existence and quantity of the credits invoked by the creditors, which can have different nature and origin, such as workers, the banks, suppliers, merchants, AFP and the tax creditor.
Finished the stage of credit recognition, INDECOPI calls for a Creditors’ Meeting, shaped by the creditors whose credits were recognized. The above mentioned organ that replaces to the Shareholders’ Meeting and it has the faculty to decide if the company is kept on the market, restructuring it, or its exit of the market, approving the dissolution.
If the company is restructured, there will be designated a manager who throught of a Plan of Restructuring, will start paying to the creditors as the rates of interest, period and conditions agreed in the above mentioned document (For example Channel 4, Channel 9, Saga etc). If the company is liquidated, a liquidator is designated with the purpose of selling the goods of the company according to an Agreement of Liquidation. The liquidator must realize the payments in favour of the creditors as the order of marshaling where the first ones in charging are the workers and the creditors with guarantees (For example Faucett, Aeroperu etc.)
Finally, if the company already does not have patrimony that the liquidator could sell the process goes on to hands of the judicial power who must declare the bankruptcy of the company, its extinction and the uncollectibility of its obligations.
Presentation: The procedure of insolvency according to the Peruvian Concursal Law Nº 27809 (General Insolvency System Law)
My presentation will deal with the topic of the procedure of insolvency according to the Peruvian Concursal Law. I will structure the presentation as follows: First of all, I will give you a short introduction and the explanation about the main characteristics of this procedure. Secondly, I will distinguish the main steps.
Introduction and main characteristics
This is an administrative (no judiciary) procedure where a company (enterprises) that have economic difficulties and its capacity of payment has been seriously affected, should request to the INDECOPI its declaration of insolvency. Likewise, a creditor who has been affected by the crisis of the debtor should request to the INDECOPI (Government agency called National Institute for the Defense of free Competition and the Protection of Intellectual Property) the declaration of insolvency of the company. If the company is declared in insolvency, will take as an effect the protection of its patrimony. Why? To avoid the other creditors could extinguish the patrimony of the company, because the propose of the procedure is give to all creditors the possibility to recuperate their credits.
Main steps
- Admissibility: As soon as the INDECOPI checks the legal requirements of admissibility, a resolution is issued declaring the insolvency of the company and ordering a publication to inform to the creditors about the situation of the company. Why? Because they will decide if present or not their requests of credit recognition. For this reason the procedure of recognition of credits is merely voluntary.
- Recognition of credits: This is a sub procedure where The INDECOPI, across the Concursal Commission, must analyze the existence and quantity of the credits invoked by the creditors, which can have different nature and origin, such as workers, the banks, suppliers, merchants, private administrators of pension funds and the tax creditor.
- Creditors’ Meeting: Finished the stage of credit recognition, INDECOPI calls for a Creditors’ Meeting constituted by the creditors whose credits were recognized by Concursal Commission. The Creditors’ Meeting replaces to the Shareholders’ Meeting and has the faculty to decide if the company is kept on the market, restructuring it, or its exit of the market, approving the liquidation and dissolution.
- Destiny of the Company: If the Creditors’ Meeting decided the company’s restructuration or reorganization have to design a manager who, through a Plan of Restructuring approved by the Creditors’ Meeting, will start paying to the creditors according with the rates of interest, periods and conditions agreed in this multilateral contract which is enforceable to all creditors (For example Channel 4, Channel 9, Saga etc). If the company is liquidated, a liquidator is designated by the Creditors’ Meeting with the purpose of selling the assets of the company according to an Agreement of Liquidation. The liquidator must pay the creditors respecting the order of preference where the first ones in charging are the labour creditors and the creditors with guarantees (For example Faucett, Aeroperu etc.)
According with the World Banks 2009 Closing a Business Indicator the average of duration of a procedure of insolvency is 3.1 years.
I hope the presentation was clear for you and serve you to know a bit of Peruvian Concursal Law.
Thank you very much.
Renzo Canalle
