Insolvency legal advice

Legal assistance in insolvency proceedings is a complex activity that requires a high degree of professional expertise.

In spite of having a proper legal advice, unfortunately, claim collection in insolvency proceedings is in many occasions complex and even unsuccessful. Therefore, it is essential to have the best legal advice of expert lawyers in Spanish insolvency law.

Restructuring & Insolvency lawyers in Spain

LAWANTS offers not only significant and consolidated experience and expertise in insolvency proceedings, but also professional advisory services to both individuals and companies that find themselves in situations of liquidations and corporate restructuring.

As insolvency solicitors in Spain, we represent our clients involved in insolvency proceedings handled in Spain, carrying out all possible and necessary actions for the effective protection and recovery of our clients’ claims.

We offer you legal advice with any professional service related to an insolvency proceeding in Spain.

Contact us for more information.

Types of insolvency proceedings in Spain

There are two types of insolvency proceedings in Spain: necessary insolvency filing (“concurso necesario”) and voluntary insolvency filing (“concurso voluntario”).

Necessary insolvency filing

This type of insolvency proceedings can be initiated through a request of a creditor, company’s shareholders or the persons who are personally liable for the debt, based on the following reasons: 

  • If attachments of the debtor’s assets granted in enforcement proceedings have proven to be ineffective
  • Existence of generalised attachments on the debtor’s assets
  • If the debtor does not pay their creditors regularly
  • If the debtor does not comply with tax payment obligations
  • If the debtor is liquidating fraudulently or hiding his assets 

If the debtor’s insolvency is sufficiently proven, we can request the competent judicial authority to declare his state of insolvency and order the initiation of an insolvency proceedings and the liquidation of his assets. 

It is important to note that if the debtor does not voluntarily apply for insolvency proceedings in the term established by law (within two months from the declaration of insolvency), it will be considered as a fault and liability of the company’s directors who in these specific cases could be ordered to pay the insolvency claims.

Voluntary insolvency filing

In the concurso voluntario, the debtor can declare insolvency before the Spanish competent Court in order to avoid any executive action and proceed to the liquidation of assets. Furthermore, this type of insolvency proceeding can be used by the debtor to restructure his debt in order to maintain their business or economic activity.

Insolvency liability of company’s directors

If the insolvency of a company has been caused by negligence or a breach of duty of its directors they may be obliged to pay the insolvency claims. In addition, the seizure and enforcement of their personal assets will be possible.

We have an extensive professional experience in conducting in-depth analysis to check if insolvency liability of the company’s directors exist (mismanagement, wrongful trading, fraudulent trading, misfeasance).

If the directors are liable of the company’s insolvency, we take the necessary legal action to obtain a declaration of liability from the judicial authority and to ensure that they are condemned to pay the insolvency claims.

Application for exequatur of a foreign insolvency proceedings in Spain

If a non-Spanish debtor has been declared insolvent by a non-Spanish Court and has assets in Spain, it is possible to apply for the exequatur of the insolvency proceedings, regardless of whether the debtor resides in Spain or not.

Depending on the State in which the declaration of insolvency has been issued, the recognition of foreign insolvency proceedings in Spain will be subject to one or another international regulation:

  • If the declaration of insolvency has been issued by a non-EU member Court, the application for exequatur will be governed by the Spanish Law no. 29/2015 of international legal cooperation in civil matters (LCJIC).

 

  • If the declaration of insolvency has been issued by an EU member Court, the application for exequatur will be governed by the Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction, and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I bis Regulation).

At the time to apply for the exequatur of the insolvency proceedings in Spain, it is also possible applying for provisional measures on the debtor’s assets (even “ex parte”), so that the debtor does not dispose of their assets in the time that elapses between the application for exequatur and the recognition of the foreign insolvency proceedings in Spain.

Nevertheless, whether applying for the exequatur of an insolvency proceeding in Spain or applying for provisional measures, it is necessary in both cases to carry out effective Asset Tracing on the debtor’s assets. Our team of experts in Asset Tracing & Recovery can provide you with this service.

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