New Nordic Group
In Thailand, the main rehabilitation procedure is a business reorganization (Section 90 of the Bankruptcy Act). A business reorganization is a form of bankruptcy that involves a rehabilitation of a company’s business affairs, debts, and assets, and for that reason is known as a “reorganization” bankruptcy. This version of bankruptcy gives the company a fresh start.
However, this new start is subject to the company fulfilling its obligations under the plan of rehabilitation. The aim is always to resolve the financial difficulties of a company by allowing the company to continue engaging in business and thereby preserve greater value for creditors and investors.
Part of this process, under court supervision, may involve reviewing existing contracts for overly burdensome obligations as well as adjusting repayments on obligations and the “clawback” of preferential payments.
The steps outlined below are a summary of the usual steps for a business rehabilitation under the Thai Bankruptcy Act for restructuring as “Debtor in Possession”.
1. Filing the petition
The process commences when a petition is filed with the Central Bankruptcy Court by the company (a voluntary petition).
After the petition for the rehabilitation of the debtor’s business has been filed and reviewed, the court may issue an order accepting the petition if it appears to the court that (under sections 90/3, 90/5 and 90/10, BA):
- The debtor is insolvent.
- The debtor is indebted to creditors for THB 10 million or more.
- The debtor is not subject to absolute receivership or dissolution.
When deciding whether to issue an order for the rehabilitation of the debtor’s business, the court will look at the reasonable grounds for rehabilitating the business, and check that the petitioner has filed the petition in good faith.
2. At the filing
Usually, the Executives and/or Directors automatically assume the identity of “Debtor in Possession” and will continue to operate the business and maintain control of its assets while undergoing the reorganization.
During this period, the “Debtor in Possession” is expected to act on behalf of the investors in running the company to ensure that as much value is preserved as possible. In a small number of cases, a separate planner may be appointed or elected.
A stay of creditor actions against the filing company automatically goes into effect when the petition is filed. This automatic stay is a statutory “order” which protects the company and property and prohibits actions by creditors after the filing. In general, it applies to all creditors (both secured and unsecured).
3. Disclosure statement
Once the filing has been made, a disclosure statement must be submitted to the court. This will provide adequate information about the debtor’s financial affairs to enable creditors to make an informed decision on whether to accept or reject the rehabilitation plan. Once the disclosure statement has been filed, the court will hold a hearing on whether to accept the statement. Oftentimes, rehabilitation plans cannot be accepted or rejected until the court first approves the disclosure statement.
4. Notice to creditors
The court will arrange for notice of the filing of the petition to all creditors on the list of creditors. Email notices are currently accepted due to the Covid-19 Pandemic.
5. Filing proofs of claim
The Court will assign a date by which the creditors must file a Proof of Claim.
The date is usually listed on the Notice to Creditors. Creditors whose claims are listed on the schedules provided by the customer will still be required to file proofs of the claim.
Proofs of claim must also be filed on claims that are not listed on the customer’s schedules or are listed as disputed, contingent, or unliquidated. Proofs of claims must be filed with the court and it is the responsibility of the creditor to determine whether its claims are accurately listed.
The court can appoint a committee of unsecured creditors – usually the largest creditors – to represent the interests of all unsecured creditors.
6. Plan of rehabilitation
There is a 90-day period (and up to 60 days of extensions if needed) from the time of appointment of the Planner when the Planner must file the Reorganization Plan.
The contents of the Rehabilitation Plan must include a classification of claims (debts) and must specify how each class of claim will be treated under the plan.
The Bankruptcy Act lists the mandatory and discretionary provisions for the Rehabilitation Plan.
7. Voting on the rehabilitation plan
The Company must hold a creditors’ meeting to discuss and approve the business rehabilitation plan (BA s.90/46). The plan must be approved by a special resolution of the creditors’ meeting consisting of either:
- each group of creditors; or
- at least one group of creditors where the total debt of the creditors who have approved the plan at the meeting of all the creditor groups is not less than 50%
If the creditors do not pass a resolution accepting the plan or do not pass any resolution, or the creditors do not attend the meeting, the court will issue an order cancelling the business rehabilitation order and possibly ordering bankruptcy and the liquidation of the company’s assets.
All creditors and equity/security holders will be mailed:
- the plan or court-approved summary of the plan
- the disclosure statement approved by the court
- notice of the time within which acceptances and rejections of the plan may be filed
- such other information as the court may direct
- notice of the time fixed for filing objections
- notice of the date and time for the hearing on confirmation
- a ballot for accepting or rejecting the plan
The debtor in possession has 180 days after the filing of the petition to obtain acceptance of the plan.
The creditors approve the Plan by way of a special resolution reached in a prescribed procedure. For this purpose, the creditors will be classified as follows (BA s.90/42):
- each secured creditor with a secured debt of 15% or more of the total indebtedness will each be classed as a group
- secured creditors not classified under the first point above will be classed as a group
- unsecured creditors can be classified into several groups; however, unsecured creditors whose claims or interest are identical or similar in material aspects can be the same group
- creditors who, by law or contract, have the right to receive repayment, only after the other creditors have received repayment in full, will comprise one group.
There is a limited class of creditors who are automatically deemed to have accepted the plan.
8. Confirmation hearing
The Bankruptcy Act requires the court to hold a hearing on confirmation of the plan after the notice is given to all interested parties. If the creditors have passed a resolution accepting the plan, the court will consider the plan and will issue an order approving the plan after determining that (BA s. 90/48 and 90/58, BA):
- the plan contains all required items;
- the rights of the creditors within the same group are treated equally, and the proposals for repayment of debt under the plan are under the sequence stipulated by the law regarding the distribution of assets in a bankruptcy case except where those creditors have given their consent for another arrangement; and
- when the plan has been successfully implemented, creditors will receive debt repayments in amounts that are not less than would be the position were the court to adjudge the debtor as bankrupt.
9. Post-confirmation administration and modification
After the plan is confirmed, the company is required to make plan payments and is bound by the provisions of the plan.
10. Final decree and end of the rehabilitation
A final decree closing the case must be entered after the company has fully administered the plan of rehabilitation. Companies with many creditors can take years to reach a final decree.
If it is found that the business rehabilitation has been completed under the plan, the court will order the termination of the business rehabilitation (BA s.90/70).
When the business rehabilitation is terminated, the debtor, the creditors and other parties are affected as follows:
Debtor and creditors. The debtor can continue its business as normal and will be free from all debts occurring before the court-ordered business reorganization, except for debts owed to eligible creditors who have applied for repayment in business rehabilitation (Section 90/75 BA)
Debtor’s executive. The debtor’s executive will again have the authority to manage the debtor’s business operations and assets (Section 90/75, BA).
Debtor’s shareholders. The debtor’s shareholders will resume their legal rights (BA s.90/75).
Debtor’s employees and trading partners. Although there are no specific provisions concerning how the debtor’s employees and trading partners are affected by the termination of the business rehabilitation, since the rehabilitation procedure never causes the debtor’s business to cease to operate, the debtor’s employees and trading partners are not affected by the initiation or termination of the rehabilitation procedure.
Need further information?
We understand you may have specific questions about the reorganization procedure. Please refer to our Frequently Asked Questions (FAQs) or contact us directly.