Summary: Law 141-15 pertains to restructuring and liquidation of companies and commercial persons places the Dominican Republic among the countries with the most advanced and modern legislation in the matter. Said law not only establishes procedures and mechanisms necessary for companies and local merchants to have options for surpassing financial difficulties without recurring to the liquidation of the company assets. Furthermore, it transcends the regulation of commercial restructuration and liquidation in an international aspect by including in its title IV the cooperation in international procedures. With this article we will explain in detail the origin of this title, its objectives, its scope in international cooperation, and finally, its repercussions in the Dominican and international legal spectrum.
Key words: Law 141-15, restructuring, insolvency, liquidation, cooperation, international, UN, model law, UNCITRAL, foreign procedure, main foreign procedure, foreign representative, creditors, debtor, court, establishment, preventive measures, recognition, parallel procedures, Dominican Republic.
Before we refer to the specific origin of title IV of Law 141-15, it is relevant to briefly mention the origins of Law 141-15 (here on referred to as Law 141-15 or The Law).
The law has its origins in the legal, investment, business, and international treaty's scopes.
Regarding the legal origins, if we consider the precepts of Law 141-15 we can identify that the Dominican Constitution encourages the national economy to strengthen the development of all its sectors and promote the protection, development, and competition of all its subjects in the interest of general social wellbeing1.
On the other hand, regarding the origins in the investment and business spectrums, it is common knowledge that the Dominican Republic has maintained through the years a position of disadvantage in regards to other countries, as seen in the annual classification given by the World Bank about business climate (Doing Business). In 2017's last report2, the general grade given to us as a country placed us in the 103rd spot of 190 countries considered in the classification. This grade is divided in the following ten categories3:
- Starting a business
- Construction permits
- Access to electricity
- Property registry system
- Access to financial credit
- Protection of minority investors
- Tax system
- Foreign trade
- Legal safety of contracts
- Insolvency system
Regarding the specific category of the insolvency system, our country was placed in the 160th place, due to the fact that the Dominican laws that govern the bankruptcy procedure can be traced back to the Napoleonic era. During this time, liquidation was the only foreseeable option, which implied high costs for the company and its creditors, as well as risks for the employees, in turn contributing to the uncertainty that emanated from the time these processes took and the negative impact they had in the national economy.
In the end, it was clear that a legal reform in the area was highly necessary to propel us into a higher level of commercial and industrial competition.
In relation to the origins of the law in the international treaty sphere, various instruments of which the Dominican Republic is a part of propelled the use of the law - the Free Trade Agreement subscribed between the Dominican Republic, Central America, and the United States (DR-CAFTA), the agreements subscribed by the Dominican Republic as part of the World Trade Organization, and lastly, the commitments assumed by our country as member of the United Nations (UN).
Finally, in regards to the specific origins of title IV, which verses on the cooperation in international procedures, Law 141-15 derives from the UNCITRAL model law about cross-border insolvency procedures, which emanates from the Legal Commission for International Trade of the UN, and published through the Resolution No. 52/158 of the UN General Assembly on December 15th, 1997, in its 72nd plenary session.
The Legal Commission for International Trade of the UN (UNCITRAL) was created by means of UN's Resolution No. 2205 on December 17th, 1966, with the goal of watching over the strengthening of international commerce and to serve as support for those countries in the process of development, so they may advance in the matter of cross-border commerce.
In that sense, considering the surge and increase of international commerce, UNCITRAL developed a model law about cross-border insolvency procedures as a base for the creation of legislations in countries in the process of development in regards to the coordination and cooperation in multijurisdictional insolvency procedures.
UNCITRAL's model law is divided in to the following five chapters:
- General dispositions (Chapter I);
- Representatives' and creditors' access to the Courts (Chapter II);
- Recognition of a foreign procedure and existing measures (Chapter III);
- Cooperation with the Courts and foreign representatives (Chapter IV), and;
- Parallel procedures (Chapter V).
It is no surprise that Law 141-15 is comprised of the same chapters and that most of the 32 articles that compose it are the same as those found on UNCITRAL's model law. In other words, title IV of our law comes directly from UNCITRAL's model law.
Through UNCITRAL's model law the UN has offered solutions and suggestions to the legislative branches of member states, which were at the time considered and accepted by most of our legislators for the following objectives4:
- Provide the foreign representative with access to the courts in order to allow cooperation between insolvency jurisdictions.
- Determine when foreign insolvency procedures should be recognized by local courts.
- Provide foreign creditors with a transparent legal regime to start or take a part of an insolvency procedure.
- Allow the cooperation and coordination between courts and representatives of different jurisdictions involved in an insolvency process.
- Authorize courts and local officials to seek assistance in foreign jurisdictions involved in an insolvency procedure.
- Establish clear rules in case of parallel insolvency procedures in multiple jurisdictions.
- Establish rules of coordination and measured to be employed in case of multijurisdictional insolvency cases that involve the same debtor.
In sum, UNCITRAL not only created a model law that would serve as benchmark for all UN member countries that did not have a modern insolvency legislation, but it serves as an interpretative guide for judges, academics and attorneys to apply it in the reorganization and insolvency procedures in their correspondent jurisdictions.
SCOPE OF APPLICATION OF INTERNATIONAL COOPERATION
Law 141-15 states on article 197 that the reach or postulates under which international cooperation operates are the following:5
- In regards to a foreign procedure6, a foreign court7 or representative8 requests assistance in the Dominican Republic;
- Request for assistance in a foreign state regarding a restructuring or liquidation process that is being carried out in accordance with the law;
- Simultaneous procedures pertaining the same debtor, in a foreign process and a national process, in accordance with the law; and
- When creditors and other interested parties that are in a foreign state have an interest in requesting the start of a judicial restructuring or liquidation process, or in participating in a procedure that is being carried out in accordance with the law.
The law limits the application of Title IV in cases where there is a conflict between the law and the content of international treaties that the Dominican Republic is a part of.
Next, we will analyze each of the aforementioned postulates and their application in accordance with Law 141-15.
i) Regarding a foreign procedure, a foreign court or representative requests assistance in the Dominican Republic;
This refers to the duty to cooperate that courts and local officials have with foreign courts and representatives (article 214 of Law 141-15), which consists in the following cooperation mechanisms:
- The designation of a person or institution that will act under the direction of the court, the verifier, the conciliator, or the liquidator (article 215, number ii, Law 141-15).
- The communication of information by any means that the court, the verifier, the conciliator, or the liquidator considers appropriate (article 215, number iii, Law 141-15).
- The coordination of the administration and supervision of the debtor's assets and businesses (article 215, number iv, Law 141-15).
- The approval or compliance by the Courts of agreements relevant to the coordination of procedures (article 215, number v, Law 141-15).
- The coordination of procedures being carried out simultaneously pertaining the same debtor (article 215, number vi, Law 141-15).
In the guide of interpretation of UNCITRAL's model law the list of cooperation mechanisms should be seen as purely enumerative, not limitative, because it would not include all viable ways of cooperation.
ii) Request for assistance in a foreign state pertaining a restructuring or liquidation process that is being carried out in accordance with the law;
The second postulate concerns available preventive measures, both with the application (article 209 of Law 141-15), as well as after the recognition of a foreign procedure (article 211 of Law 141-15). The preventive measures may consist of the following:
- Suspension of all execution measures against the debtor's assets (article 209, number i, and 211, number i, Law 141-15).
- The designation of an administrator or judicial caretaker for all or part of the debtor's assets that are located within the national territory, in order to protect and preserve the value of those that due to their nature, may perish, are subject to depreciation, or are in danger by any other circumstance, taking into consideration that said designation could fall on a foreign representative (article 209, number ii, Law 141-15).
- The suspension of the right to transfer or burden the debtor's assets, as well as the right to dispose of them by any means (article 211, number ii, Law 141-15).
- Order the presentation of proof or information supply concerning the assets, businesses, rights, obligations, or responsibilities of the debtor (article 211, number iii, Law 141-15).
- The designation of a conciliator or liquidator for the administration or execution of all or part of the debtor's assets that can be found in the national territory (article 211, number IV, Law 141-15).
- To extend any cautionary measure given in accordance with article 209 (article 211, number v, Law 141-15).
- To grant any other measure that, in accordance with the law, may be given to the conciliator or liquidator (article 211, number vi, Law 141-15).
- To request the court for the designation of an official for the distribution of all or part of the debtor's assets that may be found in the national territory, as long as the court can assure that the interests of those creditors that are domiciled in the Dominican Republic can be sufficiently protected (article 211, paragraph I, Law 141-15).
It's necessary to point out that the measures established in the aforementioned numbers i and ii, according to article 209 of Law 141-15 depend on the discretionary power of the Court and on the capacity of the foreign representative to prove the urgency to preserve and protect the debtor's assets or the creditors' interests.
That being said, in the scope of the interpretation guide of UNCITRAL's model law, the established measures in article 209 of Law No. 141-15 were conceived restrictively for perishable goods, assets subject to depreciation, or those in danger of being lost or hidden.9
On the other hand, the measures established in the aforementioned numbers i, iii, iv, v, vi and vii may be requested to the Court both before as well as after the recognition of the foreign procedure.
In the first case, same as those measures contained in article 209, they are given under the discretionary power of the Court in urgent cases or in order to preserve assets that are of interest; while in article 211, after the recognition of a foreign process, the discretionary power of the Court is only bordered by the obligation to make sure that the measures taken are regarding assets that will be administrated in the scope of a non principal foreign procedure or the information that will be required in the principal foreign procedure.10.
In any case, as established in article 212 of Law 141-15, there are guaranties that force the Court to make sure that the creditors' interests and those of any person of interest and the debtor's are protected when any precautionary measure is granted, denied, or modified.
In this sense, it will be left to the free appreciation of the Court and its discretion to condition any precautionary measure for reasons it regards relevant, as well as modifying it or leaving it without effect.
iii) Simultaneous procedures concerning the same debtor, in a foreign process and a national process, in accordance with the law;
The third postulate refers to parallel procedures established in Title IV, articles 216 to 219 of Law 141-15. A principal foreign procedure may be recognized regardless if there is a local procedure in course. Nevertheless, if the foreign procedure is recognized before the local procedure the latter will only proceed if the debtor has assets in the Dominican Republic.
This entails that according to Dominican legislation, it is not necessary for the debtor to have an establishment in the country, as defined by Article 196, number vi. Our legislator's decision to not limit the recognition of a foreign principal procedure to the existence of an establishment, but to the existence of assets in the Dominican Republic or that these must be administered according to the law is a measure that protects international commerce and the interests of all creditors, both locals and foreigners, in detriment of giving more protection to local creditors.
In parallel procedures, the Court that has been assigned the local procedure will be subjected to the duties and mechanisms of cooperation established in articles 214 and 215 of Law 141-15. This cooperation and coordination comprises the assignment, execution, modification, and elimination of precautionary measures established depending on the recognition of the principal foreign procedure.
The treatment given to parallel procedures will depend on the existence in time of the local procedure in comparison to the recognition request of the principal foreign procedure.
In this sense, if the local procedure is already in course when the recognition application for the principal foreign procedure is presented every precautionary measure given in the course of the procedure must be compatible with those established on articles 209 and 211.
On the other hand, if the local procedure begins after the principal foreign procedure is recognized every precautionary measure established will be reexamined by the Court to determine its preservation, modification, or revocation.
In any case, the precautionary measures given to the representative of a non principal foreign procedure will only prevail when required by said procedure or when they affect assets that must be preserved in said foreign procedure according to Dominican law.
Nevertheless, according to the interpretation guide for UNCITRAL's model law the principle that must be followed in the interpretation of this article establishes that the beginning of execution of a local procedure does not prevent or hinder the recognition of a foreign procedure; therefore, local Courts are allowed under circumstances to establish any precautionary measures needed in favor of the foreign procedure11.
Finally, according to article 219 of Law 141-15, with the exception of creditors that possess privileged credits, with warranties or property rights, a creditor will not be allowed to collect twice, once in regards to the foreign procedure and another due to the local procedure, in reference to the same debtor, before all creditors of the same category are satisfied in a similar proportion. The purpose of this rule is to prevent a more favorable outcome for one creditor over others of the same category by receiving payments from multiple jurisdictions, even in cases where said creditor has been more active in the pursuit of the satisfaction of his credit that others.
iv) When creditors and other interested parties that are in a foreign state have an interest in requesting the start of a judicial restructuring or liquidation process, or in participating in a procedure that is being carried out in accordance with the law.
This last postulate refers to the representatives' and foreign creditors' access to the legal restructuring and liquidation jurisdiction in the Dominican Republic. This entails that through the appearance legitimacy established in article 199 of Law 141-15, representatives and foreign creditors have direct access, without subterfuges or special procedures, to the legal restructuring and liquidation jurisdiction in the Dominican Republic.
Nevertheless, there are boundaries to representatives and foreign creditors' access, or better yet to the appearance legitimacy, due to the fact that without knowing the viability of the request for submission to the Dominican laws that rule assets and businesses pertaining to the corresponding process, its approval cannot be automatically established.
In other words, the legitimacy of the action, as established in article 201 of Law 141-15, will only be allowed if the foreign representative requests the opening of a procedure that qualifies under the rule of our legislation.
What representatives and foreign creditors search for by accessing local jurisdiction is the recognition of the foreign procedure, its requirements, and its effects. On this particular subject, in our opinion, the legislation presents itself in certain disarray in the matter of execution in time of the processes, because it encompasses in anticipation the effects of recognition, the equal treatment between foreign and local creditors, and even the rules of procedure that must include the notifications directed to the creditors that reside in the country.
All of the above, even before referring to the procedure of requesting recognition that the foreign representative must incur in (article 205 of Law 141-15), to the time the court will take to decide on the request for recognition (article 207 of Law 141-15), and finally the duty of information the foreign representative undertakes to submit any eventuality that may arise about the procedure to the Court (article 208 of Law 141-15).
Lastly, the effects of a principal foreign procedure recognition are:12
- The suspension of the beginning or continuation of all actions or individual procedures that are being held regarding assets, rights, obligations, or responsibilities of the debtor.
- The suspension of any measure of execution against the debtor's assets, and;
- The suspension of any right to transfer or place a warranty over any asset of the debtor, as well as any right to dispose in any way of said assets.
Unlike the precautionary measures established in articles 209 and 211 of the law, which are of a discretionary nature for the Courts to grant and may be established both for a principal and a non principal foreign procedure, the effects of recognition established in the aforementioned article are automatic and limited to the recognition of the principal foreign procedure.
The reason that the effects of article 210 are automatic starting with the recognition of the principal foreign procedure lies on the need to maintain order and organization in procedures of cross-border insolvency13.
On the other hand, the suspension of actions and individual procedures established as an effect of the recognition of a principal foreign procedure must be interpreted as comprising all kind of actions, be them judicial, extrajudicial, and even those pursued through arbitrary courts. This is reinforced by the public order character established in article 4 of Law 141-15. Therefore, not recognizing or respecting the effects of suspension, and consequently causing damage to all interested parties in an insolvency procedure could be sanctioned according to Title V of Law 141-15.
Finally, the paragraph of article 210 establishes a limitation of the reach of automatic and mandatory effects of the recognition of a principal foreign procedure. This exceptions and limitations would operate in cases in which, according to the state of affairs, articles 54 and following of Law 141-15 are applied with the objective of protecting the legitimate interests of all parties involved in an insolvency procedure.
The reach of Title IV of our Insolvency Law, in addition to the decision and disposition of the Dominican legislator to use as reference the UNCITRAL's model law to establish the legal guidelines and procedures that rule over cooperation on international procedures in our country places us in an ideal position to protect, in cases of cross-border insolvency, both local economic parties as well as international parties (investors), of which we very much depend on as a nation.
Law 141-15 meets all necessary requirements for an effective handle of cross-border insolvency cases, due to the fact that it includes a clear and fast process to obtain recognition of foreign insolvency procedures, authorizes measures after the recognition of foreign insolvency procedures, allows access to the Courts for foreign representatives, calls for collaboration and cooperation between the Courts and foreign representatives in cases of multijurisdictional insolvency procedures, and does not discriminate between foreign and local creditors.
Cooperation in international procedures avoids the manipulation or distraction of assets on behalf of debtors foreclosed in insolvency processes, due to the fact that instead of information breaches between potentially involved jurisdictions, the coordination and cooperation mechanisms allow for the adoption of solutions that protect economic interests and encourage foreign investment and international commerce.
Of course, one might wonder if considering the advance in foreign legislations in comparison to the new Dominican legal framework in the matter, it would make sense to assume that, given the regulation of international cooperation in cases of commercial restructuring and liquidation, foreign merchants, states, and creditors are more active than local creditors in submitting to the application of Law 141-15 in order to guarantee their rights in cases where their financial situations are at risk.
In a globalized world where companies operate and possess assets in various countries, there is a need for modern legislation that states clear rules in the matters of jurisdiction, recognition of foreign rulings, and cooperation between foreign and Dominican courts. Law 141-15 allows for the effective handle of cross-border matters through a quick and clear process which effectively responds to the new global reality.
In any case, considering how modern the new insolvency law is in comparison to our previous legal framework, we as young attorneys are placed at a leveled playing field with older practitioners both internationally and in our own country.
- OMC. Documents, data, and resources online. World Trade Organization. Updated: 2017. [Date of consult: August 19th, 2017]. Available on: https://www.wto.org/indexsp.htm.
- DOMINICAN REPUBLIC. Constitution of the Dominican Republic.
- Law No. 141-15 of Restructuring and Liquidation of Companies and Commercial Persons Law: Santo Domingo, Publisher Dalis.
- Free trade agreement between the Dominican Republic, Central America and the United States of America (DR-CAFTA).
- UNITED NATIONS. General Assembly. Resolution 52/158 Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law. 72nd plenary meeting. 15 December 1997. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/52/158.
- General Assembly. Resolution 59/40 Legislative Guide on Insolvency Law of the United Nations Commission on International Trade Law. 65th plenary meeting. 2 December 2004. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/59/40.
- General Assembly. Resolution 65/24. Part three of the UNCITRAL Legislative Guide on Insolvency Law. 57th plenary meeting. 6 December 2010. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/65/24.
- General Assembly. Resolution 68/107. Revision of the Guide to Enactment of the Model Law on Cross-Border Insolvency and part four of the Legislative Guide on Insolvency Law of the United Nations Commission on International Trade Law . 68th plenary meeting. 16 December 2013. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/107A-B
- UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL). Legislative Guide on Insolvency Law. New York, 2005. http://www.uncitral.org/pdf/english/texts/insolven/05-80722_Ebook.pdf.
- WORLD BANK GROUP. "Principles for Effective Insolvency and Creditor/Debtor Regimes". Noviembre 2015. http://www.worldbank.org/en/topic/financialsector/brief/the-world-bank-principles-for-effective-insolvency-and-creditor-rights
- Doing Business 2017, 14.ª ed.: Washington, 2017.
1. DOMINICAN REPUBLIC. Law No. 141-15 about Restructuring and Liquidation of Companies and Commercial Persons.
2. It is important to point out that the Doing Business reports are published annually and the results correspond to the previous year, thus the 2017 results reflect the business environment of 2016, before the enactment of law 141-15.
3. WORLD BANK GROUP. Doing Business 2017, 14.ª ed.: Washington, 2017, p. 204.
4. United Nations Commission on International Trade Law (UNCITRAL). Legislative Guide on Insolvency Law. General Assembly resolution 52/158 of 15 December 1997. New York, 2005. http://www.uncitral.org/pdf/english/texts/insolven/05-80722_Ebook.pdf., p. 363..
5. DOMINICAN REPUBLIC. Law No. 141-15 about Restructuring and Liquidation of Companies and Commercial Persons: Santo Domingo, Publisher Dalis, p. 109. Article 197.
6. Article 196, number i, of Law 141-15 defines a "foreign procedure" as the process, judicial or administrative, incluiding provisional measures, followed by a foreign State in accordance with a foreign insolvency law.
7. Article 196, number v, of Law 141-15 defines a "foreign court" as the judicial or competent authority to control and supervise foreign insolvency proceedings.
8. Article 196, number iv, of Law 141-15 defines the "foreign representative" as the person or institution, or someone designated provisionally, that has the power to, in a foreign process, administrate the restructuration or liquidation of a debtor's assets or companies or to act as representative of a foreign process.
9. Ibid., p. 342.
10. The principal foreign procedure is the one that is carried out in the State where the debtor has his main interests (article 196, numeral ii), of Law No. 141-15).
11. United Nations Commission on International Trade Law (UNCITRAL), ob. cit., p. 357
12. Law No. 141-15, article 210.
13. United Nations Commission on International Trade Law (UNCITRAL), ob. cit., p. 343.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.