A debtor using the tools of the stabilisation and restructuring framework is free to arrange for voting on the restructuring plan by the parties affected by it to take place out of court, i.e. to organise the logistics of the voting process itself. But this comes with potential risks. The burden of doubts about whether plan voting was carried out properly and how the result of the vote was reached are borne by the debtor (section 63 (3) of the Act on the Stabilisation and Restructuring Framework for Businesses (Unternehmensstabilisierungs- und -restrukturierungsgesetz, StaRUG). So in many cases it is advisable to arrange for court-supervised plan voting (gerichtliche Planabstimmung) in accordance with section 45 StaRUG. This avoids any disputes as to whether the voting process was conducted properly, while also making it more likely that a restructuring plan which has been accepted with the appropriate majority by the parties affected by it will be confirmed by court order.

As a rule, on application by the debtor the restructuring court will schedule a meeting for discussion and voting on the restructuring plan. To ensure that the court and the parties affected by the plan receive full information, the application must be accompanied by both the complete restructuring plan and the attachments to the plan. In cases where appointment of a restructuring practitioner is required by law, the practitioner is entitled to decide how voting is to be carried out, meaning that he or she can also arrange for court-supervised plan voting.

The parties affected by the plan must be given at least 14 days notice of the meeting. The meeting notice must expressly state that the meeting may be held even if not all parties affected by the plan attend. Since for the purposes of section 25 (1) StaRUG, non-attendance has the same effect as rejection, one of the debtor’s main tasks is to organise the majorities. The restructuring court can instruct the debtor, or the restructuring practitioner if he or she requested court-supervised plan voting, to effect service of the meeting notices.

If there is disagreement regarding the voting right to be accorded to the parties affected by the plan and the parties concerned are unable to reach agreement, the voting right will be determined with binding effect by court.

Changes may be made to the restructuring plan during the meeting with no need for the debtor to schedule a further meeting, in the same way as in section 240 of the Insolvency Code (Insolvenzordnung, InsO).

Dr Alexandra Josko de Marx, LL.M., Attorney at Law in Germany

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