Commercial law - Belgian Commercial law
19 important questions on Commercial law - Belgian Commercial law
Why do Belgian companies need to have a social security number?
And it is important for the TAX of commpanies.
What is the difference between Companies with or without legal personality?
Without legal personality the company is the owner itself.
What is the difference between companies with or without limited liability?
Even with limited liability you have guarantees for the government and banks.
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What is the difference between a capital and a persons company?
A capital company focuses on the contribution of capital, they have a great number of shareholders and there is a difference between the shareholders and the board. The shares are easy to transfer.
What are the caracteristics of a BV/SP (LTD in English)?
- Incorporation: Act of incorporation/by-laws : Notary public & no start-up capital needed, only a financial plan and proof that you have "sufficient patrimony".
- Shares: Not easy transferable
- Administration of the company: 1 or more administrators.
- General shareholders meeting: Ordinary annual meeting & extraordinary meeting.
What types of insolvency exist?
- Judicial reorganisation
What are the conditions for bankruptcy in Belgium?
- Has lost confidence of its creditors = ("undermined creditworthiness").
Explain cessation of payments for bankruptcy:
What is undermined creditworthiness?
The two conditions for bankruptcy are, in practice, closely linked. One is usually the cause or the consequence of the other.
How does a bankruptcy commence?
- The bankrupt business itself
- One or more creditors
- The public prosecutor.
A business must file for bankruptcy if:
- Within one month from the moment the bankruptcy conditions are met
- There are criminal and civil sanctions for failure - Personal liability for directors for any increase in the liabilities resulting from the delay in filing for bankruptcy
What are the principal steps taken during a bankruptcy?
1. Declaration of bankruptcy if the conditions are met
2. Appointment of a trustee ("curator"/"curateur");
3. Notification of the creditors by the trustee
4. Declaration by the creditors within 30 days what they are owed at the registry of the commercial court
5. Verification of the claims by the trustee/court
6. Liquidation of the estate
7. Proceeds are distributed according to a statutory order of priority
What is the impact of a bankruptcy order?
- Business loses the right to manage its assets
- All payments, acts or transactions carried out by the company and all payments made to the company after the declaration of bankruptcy are void
- The trustee in bankruptcy represents the company and will take over the running of the business.
- The trustee in bankruptcy has wide discretionary powers including a power to sell the assets and to distribute the proceeds to creditors.
What actions can be unwound during a bankruptcy?
The trustee in bankruptcy may apply to the court to have any of the following transactions set aside:
- Security granted during the Suspect Period if it is intended to secure a debt which existed prior to the date on which the security was granted
- Any transaction entered into by a company during the Suspect Period if the counterparty of the transaction was aware of the cessation of payments
What are the conditions for a judicial reorganisation?
- It can be granted by the court on the request of a merchant of company if he/it faces financial difficulties which threaten the business's continued business in the short or medium term. The aim of a judicial reorganisation is to preserve the continuity of the business.
What are the 3 types of judicial reorganisation?
- Judicial reorganisation by way of amicable settlements
- Judicial reorganisation by way of collective agreement/reorganisation plan
- Judicial reorganisation by way of a transfer of enterprise under court supervision
What is a moratorium in a judicial reorganisation?
- Judicial reorganisation involves a moratorium of up to six months from the date of the court's order to permit a judicial reorganization
- This can be extended up to a maximum of 18 months in complex cases.
- During the moratorium, no enforcement can, as a rule, take place against the company's assets and no bankruptcy procedure can be opened.
Explain judicial reorganisation by way of amicable settlements:
- The negotiation of settlements with all or some of the company's creditors negotiated on a case-by-case basis takes place under the court's supervision
- Once agreed, the amicable settlements will be presented to the court and the moratorium will end.
- As long as the company complies with these amicable settlements, no enforcement of the debt on which a settlement has been agreed may be executed.
Explain judicial reorganisation by way of collective agreement/reorganisation plan:
- The company must prepare a reorganisation plan involving a description of the restructuring and a description of each creditor's rights following such restructuring
- This restructuring may consist of different measures such as a debt write-off, modification of payment terms, interest waivers, the transfer of all or part of the company's business or the conversion of debt into equity.
Explain a reorganisation plan, secured and unsecured creditors are not treated in the same way:
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