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16 August 2019
The Bankruptcy Act has been amended by a statute which came into force on 1 July 2019. The amendments aim to simplify and accelerate bankruptcy proceedings. This article focuses on amendments that affect the position of creditors located outside Finland.
Before the amendments, the Bankruptcy Act provided for a two-stage scrutiny of claims process, which often confused foreign creditors. In the first stage, the estate administrator investigated the receivables of the creditors for the estate inventory, based on (among other things) the debtor's accounting information and information given by the creditors. After completing the estate inventory, the estate administrator set the lodgement date and instructed the creditors to make the lodgement of claim within the time limit. In the second stage, the claims lodged by the creditors were investigated separately during the creation of the draft disbursement list. In general, the claims notified by the creditors for the estate inventory were not considered in the draft disbursement list.
The two-stage scrutiny of claims process led to confusion particularly for creditors outside Finland. Creditors might have assumed that claims notified for an estate inventory would be considered in the draft disbursement list without separate lodgement of claims.
The amended Bankruptcy Act clarifies that a claim lodged before the setting of the lodgement date will be considered in the draft disbursement list. Thus, if a creditor notifies its claim in writing to an estate administrator for the estate inventory, the creditor would not need to lodge its claim after the setting of the lodgement date.
This single-stage scrutiny of claims process reflects practices in use in several other EU countries and corresponds to the system that functioned as the basis of EU Regulation 2015/848 of 20 May 2015 on insolvency proceedings.
The amended Bankruptcy Act improves the position of creditors with smaller claims by obliging estate administrators to take clear claims into account unprompted, if several creditors have similar claims in bankruptcy.
'Clear claims' are typically invoice claims or claims of a uniform segment of consumers. The regulation is applicable especially in bankruptcies of online shops, travel agencies and other such companies that typically have several creditors due to their operations.
If a claim is considered without lodgement, the administrator must send the creditor a notice of the amount at which the claim will be entered in the draft disbursement list well in advance of the lodgement date. If many claims with the same or a similar basis can be deemed undisputed in this manner, the administrator may, instead of separate notifications, publish an announcement in a suitable manner to the effect that no lodgements of claim are required.
Before the amendment, the first creditors' meeting could be held only after the estate inventory was completed. This encouraged estate administrators to acquire major creditors' approval in unofficial meetings to (for example) liquidate debtor's assets or address other urgent measures.
However, under the amended Bankruptcy Act, the first creditors' meeting can be held before the estate inventory is completed if (at least) the major creditors have been reliably identified.
While the bankruptcy and restructuring proceedings case management system (KOSTI) has been active in Finland for many years, it has not previously been regulated by statute. The Bankruptcy Ombudsman recommends using KOSTI and believes that using the system is part of good administrative practice. However, KOSTI's broad use and the personal data it processes are among the reasons that have caused it to be regulated.
Administrators of bankruptcy and restructuring proceedings must upload data and documentation to KOSTI. Further, they may send notices and invitations to creditors via KOSTI. Respectively, creditors may send statements and notices (including lodgement of claims) to administrators via KOSTI.
KOSTI is available only for creditors located in Finland due to the strong ID requirements. Therefore, in Finnish insolvency proceedings, foreign creditors must continue to use the previous system of sending and receiving notices electronically or via post.
The amended Bankruptcy Act allows administrators to send notices and invitations to creditor addresses registered in the Trade Register. This will improve accessibility for foreign companies that have established a branch in Finland.
For further information on this topic please contact Klaus Majamäki at HPP Attorneys Ltd by telephone (+358 9 474 21) or email (email@example.com). The HPP Attorneys Ltd website can be accessed at www.hpp.fi.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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