The work of the Working Group V Insolvency Law UNICITRAL, in which the partner of our law firm, Bartosz Groele participated, ended with the finalization of works on model rules regarding the insolvency of groups of companies and micro, small and medium enterprises. The work on these issues lasted two years, including 4 sessions of the Working Group, in which the Polish delegation actively participated. The current stage opens discussions about the need for change and the possible shape of the national regulation. The topic of small and medium-sized enterprises (SME) will continue as Poland is obliged to modify the regulations in this respect in the light of the Council of the European Union’s directive on company insolvency, as the work of UNCITRAL (UN) working groups is an important point of reference.
The report on the work of the 55th session of the V UNCITRAL Working Group can be seen in the following link.
The Fifth Working group of Insolvency Law of UNCITRAL will choose issues for further work, and it may deal with the topic of asset tracing, which is finding assets of companies, persons and other entities in order to verify suspicions of fraud, abuse or as part of gathering evidence for post-transactional disputes. This will be determined by a colloquium detailing the specific threads, needs and characteristics of issues for the future work of the Fifth Working Group of the UN.
In New York, the 55th session of the Working Group of the V Insolvency Law UNICITRAL takes place, in which the group of experts representing Poland constantly participates. The partner of our Law Firm, Bartosz Groele, has been in this group for many years as an expert in the field of restructuring and insolvency law.
During the session, final work will be held and discussions on model regulations regarding the insolvency of groups of companies (https://undocs.org/en/A/CN.9/WG.V/WP.165). This topic accompanies the work of experts from many sessions and has been finalized. In the face of the trend related to the optimization of risk of economic undertakings and the lack of national regulation, the works are paving the way for discussion about possible solutions for Poland. Also, the topic of insolvency of micro, small and medium enterprises is taken (https://undocs.org/en/A/CN.9/WG.V/WP.165), which in the face of guidelines dedicated, among others, to Poland in the field of European regulations makes the issue extremely current. We encourage you to read the starting materials for the work, the report and the record of the discussion, which can be found in the following link (https://uncitral.un.org/en/working_groups/5/insolvency_law).
On 8 February 2019 the District Court for the capital city of Warsaw in Warsaw dismissed the petition for the declaration of bankruptcy. Said application was filed by a subcontractor against our Client who is one of the leading companies in Poland operating as a general contractor in the construction industry.
In the course of the proceedings before the first instance court our Client was represented by the Law Firm’s Partner, Bartosz Groele, an attorney-at-law and by a restructuring advisor, Bartosz Magnowski, an attorney-at-law. According to the oral rationale behind the decision presented after the decision was announced – the Court concurred with the arguments raised by the representatives of the TPG office who contended that the petition for the declaration of bankruptcy was subject to dismissal under Article 12a of the Bankruptcy Act because the petition was based on a receivable which was disputable in whole.
The issued decision is another important contribution to the adjudication line opposing the practice of filing petitions for the declaration of bankruptcy based on disputed claims. Such petitions are still effectively used by dishonest subcontractors to exert pressure on a contractor to obtain payment for a disputed claim.
Tomasik Pakosiewicz Groele Law Firm has successfully represented the manufacturer of lighting systems, a joint-stock company with its registered office in Warsaw, in the proceedings for the opening of accelerated arrangement proceedings. The Warsaw restructuring court issued a ruling in this matter on February 26, 2019.
The court shared the company’s arguments, giving the primacy to the principles of transparency of proceedings and the concordant wishes of the participants, and granted, among others, the objections raised regarding:
– unreasonable declaration of the inadmissibility of changing the arrangement proposals in the voting mode, without convening the creditors’ meeting,
– harming creditors by canceling the rehabilitation proceedings in a situation where both the creditors and the debtor were interested in continuing it,
– the inadmissibility of applying the provisions on the withdrawal of the claim (per analogiam) to the withdrawal of arrangement proposals by the debtor.
As a result of a complaint submitted under the direction of Bartosz Grele, Partner of the Law Office, and drawn up by the team of the TPG Law Firm (advocate Bartosz Magnowski, Agnieszka Kunisz, Wojciech Młocek) on 15/01/2019, the District Court in Warsaw quashed the decision to discontinue sanation proceedings against Hawe Telekom and it remanded the case. This is undoubtedly a precedent and a momentous ruling that can significantly affect the whole of the judicial practice in restructuring matters in Poland. We will provide more details after the publication of the rationale for the order.
On December 10-14, 2018 Bartosz Groele, Partner at the Law Office, is representing Poland on behalf of the Ministry of Enterprise and Technology in the 54th session of the V Working Group of UNCITRAL (UN Commission on International Trade Law) in Vienna.
On 15 November 2018 Bartosz Groele, an advocate and Partner of the Law Firm, together with Małgorzata Sawa, attorney-at-law, participated in an open hearing before the Supreme Court concerning the legal issue submitted by the District Court for the Capital City of Warsaw in connection with the doubt that arose over the issue of joint marital co-ownership in bankruptcy proceedings for the so called consumers. The Supreme Court considered the case, file number III CPZ 59/18, to adjudicate whether proper application of Article 124 section 1 of the Act on Bankruptcy Law in the proceedings towards natural persons not operating business activity should result in a conclusion that if on the day of the declaration of bankruptcy the spouses were subject to marital joint co-ownership regime, then all their assets constitute bankruptcy estate and their division is inadmissible.
The District Court for the Capital City of Warsaw submitted the legal question within the framework of bankruptcy proceedings, file number X GUp 767/17, where the natural person not operating business activity was represented by the restructuring advisor Jarosław Mrożek. However, the adjudication of the legal question may have a bearing for several thousand persons who were faced with the so called consumer bankruptcy.
The Supreme Court, having acknowledged the standpoint expressed by the attorneys regarding the importance of the legal issue in question and its bearing on the conduct of bankruptcy proceedings and the legal consequences and social impact, made a decision to refer the case for adjudication to the Supreme Court sitting in full panel.
Partner of the Law Firm Advocate Bartosz Groele and Advocate and Restructuring Advisor Bartosz Magnowski took part on the 9th of November 2018, in Warsaw in the 10th JUBILEE CONGRESS OF BANOCRATURAL AND RESTRUCTURING LAW INSO 2018. The annual Congress is an important event for practitioners and theoreticians of bankruptcy and restructuring law, which is frequented by a number of highly respected speakers.