Legal status and powers of the administrator in the Swissair Group provisional debt restructuring moratorium

 

A

General questions about the legal effectiveness and working of a debt-restructuring moratorium instituted by a judge


1.

Who has considered the petition for a debt-restructuring moratorium?

 

The debt restructuring judges at the competent district courts of Zurich and Bülach in the Canton of Zurich provisionally approved the debt-restructuring moratorium petitions by order dated 5 October 2001.

 

A provisional debt-restructuring moratorium has been granted to the following companies:

 

 

 

SAirGroup, Zurich (holding company)

 

 

 

SAirLines, Zurich

 

 

 

Flightlease AG, Zurich

 

 

 

Swissair Schweizerische Luftverkehr AG, Kloten

 

 

 

A further order of 7 October 2001 granted a provisional debt-restructuring moratorium to the following companies:

 

 

 

Cargologic AG, Zurich

 

 

 

Swisscargo AG, Zurich

 

 

 

2.

What is the difference between a provisional and an ordinary debt-restructuring moratorium?

 

Approval of a provisional debt-restructuring moratorium by a judge gives the debtor two months to consolidate the foundations of its case for petitioning for approval of the ordinary debt-restructuring moratorium. The provisional administrator helps the judge to put together the bases for a decision by providing a report and safeguarding creditors’ rights pending the judge’s final decision.

 

 

3.

Does this order have final status?

 

Yes, though it can be challenged at the Higher Court of the Canton of Zurich within 10 days. Such challenge has no suspensive effect unless the Cantonal Higher Court rules to the contrary.

 

 

4.

Who is entitled to challenge this order?

 

The debtor whose debt is being restructured. Furthermore, any creditor may challenge the appointment of the administrator.

 

 

5.

What is the effect of this order?

 

It means that execution is no longer possible against the debtor’s assets in Swiss sovereign territory.

 

Nevertheless, execution is still possible in the form of realisation of pledges, where claims are secured by charges on real property, though such pledges cannot be realised provisionally.

 

 

6.

Does this allow attachment of the debtor’s assets outside Switzerland?

 

In principle a debt-restructuring moratorium in Switzerland is also intended to cover assets abroad. Whether its effect is recognised abroad is decided according to the applicable foreign law.

 

 

7.

Can the debtor still dispose of its assets?

 

In principle, no. To dispose of assets the debtor now needs the consent of the administrator and, in some cases, the approval of the judge. However, the debtor can and must engage in all its daily business activity in compliance with the orders of the debt rescheduling judge and is subject, in doing so, to the supervision of the administrator.

B

Questions about the person and responsibilities of the provisional administrator


8.

Who is the provisional administrator?

 

He is Mr Karl Wüthrich, attorney-at-law, of the law firm of Wenger Plattner, with offices in Basle, Berne and Zurich (8700 Küsnacht-Zürich).

 

 

9.

Can the appointment of the provisional administrator be challenged?

 

Yes, it can be challenged by appeal to the Higher Court of the Canton of Zurich. Such appeal in principle has no suspensive effect.

 

 

10.

What tasks and responsibilities are assigned to the provisional administrator by order of the judge?

 

The role of provisional administrator has provisionally been assigned to Mr Karl Wüthrich, attorney-at-law. He will supervise the debtor’s business activity. The provisional administrator must also assess the debtor’s "asset, profit or income situation … and prospects for restructuring.” He has a maximum of two months to report to the judge on his findings. The judge then has to approve the petition for a debt-restructuring moratorium provided, on the strength of his assessment of the situation, he considers that conclusion of a debt restructuring agreement is feasible.

 

 

11.

What does the judge do with the provisional administrator’s report?

 

It is the judge’s duty to decide, from the petition for the debt-restructuring moratorium and the provisional administrator’s report and, where applicable, having heard other persons, whether finally to approve the petition for the debt-restructuring moratorium.

 

 

12.

In the case of Swissair Group, many of the debtor’s assets are located abroad; what happens to these?

 

The scope for attachment available to the Swiss judge and provisional administrator may be restricted by order of foreign courts and authorities. Conceivably this may lead to conflicts of jurisdiction.

 

 

13.

Surely it’s impossible that staff, customers and suppliers will be left in the lurch?

 

The law requires that, after imposition of the debt-restructuring moratorium, the provisional administrator shall compile an inventory of all financial claims of interested parties. In principle a review of the substance of these claims only takes place at a later stage of the debt-restructuring proceedings. Only creditors expressly mentioned in the law (especially employees) are entitled to privileged treatment. The principle of equality of treatment, provided by statute, does not allow the administrator to give preferential treatment to claims of individuals or groups of persons, regardless of the urgency of such treatment from the creditor’s point of view.

 

 

14.

How is the provisional administrator remunerated for his work?

 

The judge’s order specifies the method of calculation of the fee. Final invoices require approval by the judge before payment. In restructuring cases the debtor normally makes the administrator an advance for the costs of his work.

C

Questions on the division of responsibilities between provisional administrator and the company management of the debtor

 

 

15.

What functions does the debtor’s company management fulfil after approval of the provisional debt-restructuring moratorium?

 

The judge’s order allows the debtor to pursue its ordinary business, in order to preserve the value of its assets as far as possible. No extraordinary business must be transacted.

 

 

16.

Is it the provisional administrator’s concern to ensure payment of wages of staff, and instigate compensation and return claims, etc?

 

The provisional administrator’s primary task is to provide the judge with the information necessary for a decision on the final moratorium within two months. This may include identification of transactions which are open to challenge or void and which would therefore be eligible to increase the debtor’s assets. The administrator must also secure as many of the debtor’s valuable items as possible for the creditors.

 

Instigating proceedings is not one of the administrator’s tasks unless such proceedings are necessary to secure the debtor’s assets.

 

 

17.

Would it not be reasonable for the Swiss Federal Council to take over in this case?

 

The Swiss Federal Debt Prosecution and Bankruptcy Statute clearly lays down the procedure in cases of insolvency of a debtor. The only exceptions are insolvency of banks, railway companies and shipping lines - not airlines. At most, the Federal Council could assume authority to become involved by adopting emergency powers.

 

 

18.

What are the provisional administrator’s tasks with regard to the social welfare plan?

 

The debtor may prepare a social welfare plan if it is contractually bound to do so and it does not give rise to any unequal treatment of creditors. In principle there is no provision for social welfare plans in the Debt Prosecution and Bankruptcy Statute.

 

 

19.

Can the provisional administrator influence the number of redundancies?

 

In reorganising the debtor’s business, the management will bear in mind that a business plan with prospects of success is important to the decision on eligibility for debt rescheduling.

 

 

20.

What happens to funds contributed to the debtor by third parties after approval of the provisional debt-restructuring moratorium?

 

The debtor may grant security to new creditors with free assets if it concludes that the contribution of such funds is in the overall interest of all creditors. The consent of the debt restructuring judge is essential in such cases.


 

Karl Wüthrich
09.10.2001

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