In Colombia, Act 1116/2006 regulates general insolvency proceedings for legal entities. There are two modalities: recovery (reorganisation) and liquidation (judicial liquidation). What determines whether the debtor and its creditors choose between a liquidation or reorganisation proceeding is the feasibility of the company business. If the assets generate more value in reorganisation, this should be the option. Otherwise, a speedy and orderly liquidation of the company is the reasonable solution.
Pursuant to data from the Superintendence of Companies, which is the bankruptcy court, between 2007 and 2018, a total amount of 2,078 reorganisation proceedings have been accepted in Colombia, with a constant annual increase in the number of processes. This low number of proceedings indicates that managers only go to the insolvency proceedings when it comes to very complex situations that cannot be solved through out-of-court restructuring proceedings. At the moment, 1,094 reorganisation proceedings and 403 judicial liquidation are in process.
In Colombia, the Superintendence of Companies is the exclusive bankruptcy court for insolvency proceedings with more than half of a century of expertise in bankruptcy proceedings.
Currently, most companies in insolvency proceedings are from the retail sector, followed by manufacturing, agricultural, services and, finally, the construction sector.
The objective causes of an insolvency proceeding are: the default or an imminent default. These situations may be precipitated, in the case of Colombia, by changes in the external conditions of the markets, such as variations in exchange rates, the international prices of oil and other commodities, as well of internal causes, mostly regarding with negligent management of the firm and disputes among the partners.
Between January and June 2019, the proceedings initiated refer to debts of approximately USD12 million, from companies that generate around 22,000 jobs.
Colombia has a bankruptcy system in constant development, where legal figures such as secured transactions, substantive consolidation in the insolvency of enterprise groups, and cross border insolvency, all of them based on UNCITRAL model legislation, have been incorporated. This has allowed Colombian legislation on insolvency to be recognised as one of the most efficient models in the region, according to the World Bank's business climate report (Doing Business). In the short term, reforms are expected in order to simplify insolvency procedures for small and medium companies, with the intend to promote out-of-court models of reorganisation and to incorporate new instruments of transnational cooperation in cross-border insolvency matters.
The current legislation generates real incentives for financing companies in insolvency (DIP Financing), allowing financiers to access better payment positions in the debtor's credit ranking and facilitating the possibility of mergers or the acquisition of companies in distress. This set of incentives has been enhanced with the implementation of the new secured transactions statute, which, by relieving uncertainty of credit operations, promotes credit allocation in illiquid companies or those with insufficient assets in a way that means creditors can anticipate the successful collection by defining the terms of the guarantee, even if the debtor is facing an insolvency procedure.
A bill on corporate insolvency matters is currently being drafted that seeks to reform several fundamental aspects. The first relates to the regulation of bankruptcy administrators and their liability regime, the second relates to shareholders, corporate governance and the real beneficiaries of companies, the third relates to necessary adjustments in of external and internal supervision issues, as well as to insurance standards, the fourth relates to voluntary and private liquidation, shell companies, and to compliance with regulations and bookkeeping, and the fifth seeks to modify specific aspects of the processes of corporate reorganisation and judicial liquidation.
In Colombia, Act 1116 of 2006 regulates general insolvency proceedings. There are two types of insolvency proceedings: reorganisation and judicial liquidation.
The recovery procedure, in turn, incorporates two special measures. On the one hand, there is the business reorganisation process, the purpose of which is to reach an agreement, by decision of the creditors, that allows for the preservation of feasible companies and to normalise their commercial and credit relations, through its operational, administrative, asset or liability restructuring. This process is accessed at the request of the debtor, its creditors or the government entity that oversees the debtor, when the company is in default or in an imminent default.
On the other hand, the law provides for an abbreviated procedure, which consists on validating or approving an out-of-court reorganisation agreement, negotiated and voted in private, so that it is possible to extend its content to those creditors who did not participate in the negotiation and initial vote (cram-down).
As for the liquidation modality, the process seeks that the assets could be relocated in environments in which they generate greater return for the creditors, either through a piecemeal liquidation, or through the sale of business units, as going concern, according to the nature of the assets and the decision of the creditors in accordance with the appointed liquidator. This process may be initiated at the request of the debtor, the entity overseeing it, or as a result of a breach of an approved and enforceable reorganisation agreement.
The insolvency proceedings regulated by Act 1116/2006 are governed by a series of principles, among which it is worth highlighting the principle of universality, which states that all assets of the debtor and all their creditors are necessarily linked to the proceedings, and by the principle of equality, which prescribes fair and equitable treatment for all creditors belonging to the same class.
Colombian law establishes a series of special insolvency regimes for certain entities, such as financial or insurance entities, companies that provide medical services, and public service providers, among others. These insolvency procedures must be handled according to special rules, generally contained in the Statute of the Financial System, which also foresees instructions for recovery and liquidation scenarios.
In Colombia, it is possible to promote both, reorganisations and private liquidations, subject to certain special rules of publicity, in the case of liquidation, and of scope, in the case of reorganisation.
As a rule, when it comes to commercial or service companies, insolvency proceedings in Colombia are voluntary, with very specific exceptions that allow the debtor to be forced to submit to them. In the case of financial, insurance, health, or public services entities (such as power and energy, water, public transportation), the government may order a forced proceeding for reorganisation or liquidation.
In Colombia, there is no formal duty to request the initiation of insolvency proceedings. The rules leave it to the sole discretion of the debtor, through its administrators, to promote these procedures when they consider it necessary, as occurs in the American system. However, the administrators' liability regime is very strict if their conducts has caused or deepened the insolvency situation, to the point of making the administrator liable for the damages caused to creditors by their negligent conduct. If it is proven that the negligence in filing for bankruptcy was fraudulent, the administrator may end up being liable even for the debtor's unpaid liabilities.
If a company is forced to begin an insolvency proceeding, it is subject to a mandatory regime. Although there are out-of-court options, as indicated in 2.2 Types of Voluntary and Involuntary Restructurings, Reorganisations, Insolvencies and Receivership, these are restricted to companies in non-regulated sectors, which are covered by Act 1116/2006. In the case of financial, insurance, health services or public services companies, there are no options other than those provided for in the special rules, consisting of intervention to manage and intervention to liquidate, and, in both cases through special, non-judicial but administrative processes.
In the processes regulated by Act 1116/2006, creditors are entitled to promote the reorganisation of their debtor, as well as the entity that oversees the respective commercial activity, for example, the Superintendence of Transportation for companies in the transportation sector. In the case of liquidation proceedings, the creditors do not have this entitlement and the procedure can only be initiated at the request of the debtor, or by the entity that oversees the debtor company.
In the latter case, the liquidation request must be based on serious reasons typified in the law, such as the violation of accounting and financial rules, or the fraudulent use of the company to the detriment of creditors.
In Colombia, the financial situation of insolvency is not defined but is generally understood as the lack of assets in order to address the current debts. What the law provides is two basic and objective causes so that the processes can be implemented: that the company is in default before several creditors that represent at least 10% of the total debt, or that the company is in imminent danger of default. In the latter case, which has a preventive approach, it is required to prove that the cash flow will not be enough to meet the debts as they become due.
In Colombia, there are special regimes for banks, commercial lenders or other credit institutions. The law provides for two types of interventions, one to manage and the other to liquidate, depending on certain circumstances. The purpose of the administrative forced liquidation process is the prompt realisation of assets and the gradual yet swift payment of the external liabilities, until the assets ran dry, preserving equality among creditors. The intervention to manage or administer seeks to define, in a very short window, the feasibility of the entity to continue to provide the regulated services or, if this is not possible, to order its final liquidation.
These procedures are administrative in nature, not judicial, and are regulated by the Organic Statute of the Financial System, which provides a preliminary procedure for a takeover of the assets of the controlled entity, to establish whether it should be subject to liquidation or it is possible to take it to a position to adequately develop its corporate purpose.
If the appointed agent deems it unfeasible to re-establish the entity's operating conditions, they may initiate the administrative compulsory liquidation process, in which the appointed liquidator begins to exercise transitory public functions, without prejudice to the applicability of the rules of private law to the acts they execute during the process. The acts issued by the liquidator related to the acceptance, rejection, priority or qualification of credits are administrative acts and, therefore, it will be the competence of the administrative jurisdiction to decide any conflict that may arise.
With respect to health promoting entities, in order to safeguard the public health service and adequately exercise its powers of administrative intervention to liquidate, it is the competence of the Superintendence of National Health to order the taking of possession of such entities, in order to preserve its resources and assets. This same rule applies to public companies. This type of process is intended to protect public confidence when there is a risk on the provision of the service and the loss of state-owned and private resources.
Generally, participants in the corporate restructuring market prefer the out-of-court treatment of the insolvency, because they are more efficient in terms of associated costs. On the other hand, as mentioned in 2.1 Overview to Laws and Statutory Regimes, there is an intermediate stage in Colombia that starts from a private negotiation between the debtor and his creditors, but can extend its effects to all creditors, even if they have not participated in the negotiation, if obtained an approval by the insolvency judge (cram-down).
In the context of out-of-court restructuring procedures, informal and consensual frameworks, such as the INSOL Principles, are not expressly referred to by Colombian law but, in practice, their principles are observed, especially when the out-of-court workout involve professional creditors, especially from the financial sector.
In the market, there is a tacit consensus on the benefits offered by private negotiations and extrajudicial procedures for reorganisation of liabilities, as shown in statistics, in which the number of bankruptcy proceedings is irrelevant compared to the number of companies that normalise their credit relations whit their creditors or close operations every year.
Colombian banks are mainly inclined to get involved in private agreements to restructure liabilities with their clients and, to a lesser extent, to finance debtors in distress, especially since the enactment of the secured transactions statute, which allows the structuring of post-insolvency financing operations in order to anticipate the recovery of the investment.
As seen in 2.3 Obligation to Commence Formal Insolvency Proceedings, in Colombia it is not mandatory for directors to file for bankruptcy but, if they do, the process has associated costs which are a disadvantage compared to private debt negotiation procedures. What could make the insolvency procedure more desirable than the private settlement is the stay, which benefits the debtor admitted to the formal process, assuring an environment of negotiation without pressures. However, this can be achieved by entering into standstill agreements, given that the interests of those involved, which are usually financial entities, are aligned.
In Colombia, it is not necessary to enter into prior private negotiations with creditors before formally filing for insolvency. Despite this, the formal process of business reorganisation is subject to the principle of negotiability, according to which the participants in the process should privilege negotiated and non-adversarial solutions.
In Colombia, it is the possible to undertake a consensual restructuring processes, as well as the submission of previously negotiated out-of-court agreements to the Superintendence of Companies, Colombia’s bankruptcy court.
The typical procedure for private negotiation of liabilities usually begins with an open statement to creditors - not necessarily to all creditors, but to those whose debts are particularly burdensome for the debtor - accompanied with a standstill agreement draft, as well as a suggested schedule of discussion meetings. The next step is to present concrete proposals to creditors to define the content of the private restructuring agreement (term sheet), and to continue negotiations until the final text is closed, as well as post-signature steps, which usually relate to the setting up of guarantees. It is difficult to specify an average duration, but this type of procedure can take between five and 12 months, depending on its complexity, including the usual 90 days of the average standstill period.
The standstill agreement usually includes obligations relating to the non-promotion of judicial collection actions and the removal of any judicial lien that may have been ordered. In addition, it includes debtors’ obligation relating to the supply of information and the non-filing for a formal insolvency proceeding.
In private agreements, the setting up of creditor committees is not usual; eventually, in large operations of private debt restructuring, blocks of aligned interests can be generated, or committees in any case aligned with the management of the company, but there is no specific rule on this.
A key element for the success of a private negotiation is the timely provision of quality information on the true financial situation of the debtor, its basic financial statements, its projected cash flows, its business plans, the way in which the liabilities are configured, the guarantees in force and the assets available for new guarantees.
Strictly private agreements usually do not mix different classes of creditors, but involve large financial creditors or large suppliers, so that the agreement takes place in an environment of equality.
Regarding validated out-of-court arrangements, these correspond to the expression of the will of the creditors, under majority approval rules, where the result of the negotiations is materialised in a document signed by the debtor and a plural number of creditors, which should be equivalent to the absolute majority, according to certain special rules. The majority must be obtained considering the different categories of creditors, unless it is held with at least 75% of the votes assigned. In this case, it is important to consider that, even if the votes of all the creditors are not negotiated or collected, it is mandatory to inform all creditors before the commencement of the negotiations. If this is not done, the judge in charge of the insolvency proceeding will not be able to confirm or validate the agreement. In this type of agreement, it is necessary to strictly observe all the rules relating to the hierarchy of certain creditors and other particularities of the claims involved.
Negotiation takes place through meetings between the creditors and the debtor, for which it is necessary to have financial statements and inventories of assets and liabilities, with a cut-off on the last day of the calendar month prior to the date of the commencement of negotiations. In addition, the debtor must prepare a credit ranking project, in accordance with the rules established in the Civil Code and the Act 1116/2006, in order to negotiate with creditors, the different possible forms of payment.
For the beginning of the negotiation of a private agreement, it is not necessary for the debtor to be in a situation of default, nor is it necessary for them to demonstrate the existence of the objective causes of admissibility to a reorganisation process under Act 1116/2006. However, the debtor must sustain under oath that they are not involved in any cause of corporate dissolution indicated by the law and must comply with their obligations as a businessman. If the debtor lies in their claims, there may be criminal charged and exposed to civil liability.
The commencement of negotiations should be communicated to all external creditors who have certain claims in their favour on the date on which the commencement of negotiations is communicated, so that everyone can at least know and possible participate in the negotiation, without being forced. However, the law provides that when negotiations are conducted with creditors that have the majority necessary for the closing of the agreement, the debtor must inform the other creditors of its purpose, terms and conditions, at least five working days prior to signing.
Once the agreement has been reached, the debtor or any of the creditors who have signed it may request the judicial validation process before the Superintendence of Companies, through a petition accompanied by
Finally, if the judge decides to confirm the agreement, it will become binding on all creditors, even if they did not participate in the negotiation or vote on the agreement. This is the fundamental difference between the private agreement, which only binds those who participated in it, and the validated out-of-court arrangement.
The Colombian insolvency system allows exceptional privileges to be assigned to those who provide new resources or finance the debtor's crisis. In the case of old creditors who inject new money, the old debt could be upgraded to the first order of priority of the unsecured creditors, or it may have access to the setting up of a secured credit, so that its payment will be preferential and, in the case of definitive liquidation, they may exclude the asset that were given to them in guarantee from the estate. All obligations acquired after the date of commencement of the proceedings should be treated as claims against the estate, or administrative expenses.
The insolvency law does not establish specific duties of conduct, but it does provide for a very strict liability regime for debtors and their administrators, partners and employees if their behaviours contribute to damages in the asset situation of the company.
On the other hand, sanctions are provided for opportunistic creditors who take advantage of their debtor's insolvency situation, such as the order in which their debts are deferred, which means that they are paid only once all other creditors have been paid, regardless of the order of priority. Moreover, the insolvency judge is entitled to take any other measure that tends to safeguard good faith in the framework of insolvency proceedings.
In Colombia, strictly private agreements cannot be imposed on creditors who do not agree with them. There is no mechanism that allows them to be forcibly linked, except in the case of an extrajudicial agreement validation procedure, in which it is necessary to have the favourable vote of a plural number of creditors that represent, at least, the absolute majority of the votes admitted, as indicated in 3.2 Consensual Restructuring and Workout Process, which constitutes a cram-down mechanism.
Article 65 of the Colombian Civil Code defines the guarantee as "any obligation contracted for the security of another obligation of one's own or that of another". Guarantees may be personal or real. Personal guarantees refer to those in which a person other than the debtor assumes responsibility for the payment of the debt, such as in the bond and solidarity. Security interests refer to the affectation of a specific asset that responds for the obligation, that is, it falls on a thing, movable or immovable, tangible or intangible, existing or future, as permitted by the Secured Transactions Act (1676 of 2013).
Act 1676/2013 allows the creation of mortgage guarantees with access to the prerogatives of movable guarantees in insolvency proceedings, so that the creditors in whose favour real guarantees have been created, on movable or immovable property, under the protection of this statute, have access to a privileged situation with respect to unsecured creditors in the context of insolvency proceedings.
In Colombia, secured creditors, whether on real estate or movable property, cannot enforce their collateral outside the insolvency process of their debtor. It is mandatory for them to attend the process to be recognised as secured creditors, in order to demand their broad privileges in the framework of the insolvency process. During the process, secured creditors may even ask the judge to take further steps to protect the assets that serve as securities.
The enforcement of security rights that protect an obligation may be carried out depending on the type of security involved and the correct time at which it is intended to be enforced:
For business reorganisation procedures, since the effective date of Act 1676/2013, the secured creditor, once recognised, may request authorisation to enforce its guarantee, only upon the assets considered not necessary for the continuity of the company. If the assets are necessary for the operation of the company, the creditor’s right is specified in the possibility of receiving a preferential payment, before any other recognised creditor.
On the other hand, in a judicial liquidation proceeding, since the effective date of Act 1676/2013, assets secured by the debtor's property may be excluded from the liquidation estate for the benefit of secured creditors or beneficiaries of the securities provided, only if the security was duly registered in the record of movable guaranties, or in the appropriate registry, depending on the nature of the asset
As discussed in 4.2 Rights and Remedies, secured creditors have different ways of enforcing their rights, depending on both the type of security and the type of the asset, and whether an insolvency proceeding has been initiated. Once a reorganisation or liquidation process has commenced, the secured creditor is required to present itself to the process to assert its status, and thus access the prerogatives provided for it. It should be noted that, in any case, in reorganisation proceedings the secured creditor may choose not to enforce its security or request preferential payment, but to concur to the terms of the agreement with the other creditors. In an average business reorganisation process, the secured creditor may obtain recognition and enforcement of the security in about six to eight months, or the right to preferential payment between ten and 14 months after the commencement of the process. In the case of liquidation, the exclusion of the assets as security from the estate may occur, on average, within six months after the commencement of the formal process
In Colombia, there is no special procedure or impediment with respect to foreign secured creditors whose credit guarantees have been perfected under Colombian law. A secured credit transaction under the laws of another country, which has not been registered in Colombia, is unenforceable in the local bankruptcy proceeding.
Secured creditors have special treatment according to the fulfilment of certain conditions established by the regulations, as explained in 4.2 Rights and Remedies.
In Colombia, the ranking of credits allows, under the terms of Act 1676/2013, for the differentiation between creditors with real guarantees who have precise and broad privileges and bankruptcy rights, versus unsecured creditors, who are distinguished into classes of creditors, according to the nature of their debts, who are, by law, assigned a certain priority.
These creditors are grouped into different classes, as follows: the first are labour credits and those derived from taxes; the second and third, are creditors with securities over personal property or real estate before implementation of Act 1676/2013 (today, the third class includes creditors with mortgage in which there was no provision for the incorporation of the rights of that statute); the fourth class covers the debtor's strategic suppliers, for instance those who supply the raw material for its industry. Finally, the fifth class includes all other unsecured creditors, or common creditors.
In Colombia, there is no particular rule that allows unsecured commercial creditors to receive special treatment during the reorganisation process. However, there are rules that allow, for example, payments to small creditors, who are usually workers or suppliers of basic inputs to the debtor's industry. On the other hand, all debts arising from the debtor's routine operation with its suppliers must be paid when due as administrative expenses.
Unsecured creditors are forced to participate in the procedure, they cannot pursue their payments outside of it. Once they have been linked, and recognised, they are assigned voting rights to participate in decisions that affect everyone involved; they do not have the power to alter the course of the procedure. As soon as unsecured creditors are recognised and linked to the liquidation procedure, they must wait for their turn to receive their payment. However, unsecured creditors can participate through a vote in the approval of the inventory and in the eventual adjudication of the assets, if they cannot be sold.
Act 1116/2006 provides that, once the request for business reorganisation has been filed and before the judge decides on its admission, the debtor is legally disabled or being able to dispose of their assets or carry out commercial or procedural actions that are outside the ordinary business turn.
Recognition of a credit claim in an insolvency proceeding, whether reorganisation or liquidation, can take between six and 12 months. Once recognised, the unsecured creditor must wait for its turn to receive his payment. If it is a liquidation process, the creditors satisfaction will depend on the size of the estate.
There are no special rules governing the fate of property owners on different terms from other creditors. In any case, the rules indicate that the landlord cannot terminate the contract based on the failure to pay a fee before the initiation of the formal procedure but can do so on the basis of subsequent breaches. The general rule in reorganisation matters is the continuity of all the debtor's contracts.
Foreign creditors have the same rights and treatment as local creditors.
Both in reorganisation and in liquidation, the order of payments is the same: first the secured credits are satisfied, and then the unsecured. In the case of unsecured creditors, the priority of credits must be: labour and tax credits; credits secured by mortgage without privilege; credits from strategic suppliers; and other unsecured creditors. In any case, partners of the debtor company are the last to receive their payment, if there are remainders, in liquidation cases.
In Colombia, reorganisation rules provide incentives for the injection of new funds If the provider of new money is a current creditor, their recognised debts must be paid as if they were first class, and as an administrative expense with respect to new capital. Special rules allow for obtaining authorisation from the judge to make payments to small creditors before their respective turn, which is usually invoked to pay labour or pension debts, but there is no special rule that assigns them a different treatment. In any case, the rights of these creditors do not affect those of the secured creditors, with their special prerogatives.
The beginning of a reorganisation process does not require the will of the creditors and the confirmation of the agreement is achieved with an absolute majority of the votes of the recognised creditors, in which case the effects of the agreement are extended to the creditors who did not vote or voted against it.
The insolvency law allows some flexibility regarding the content of the agreement and the organisation of debts for payment, to the extent that creditors who do not have any privileges may be paid in the first order, after labour credits, if certain conditions relating to the provision of new resources and the number of votes obtained are met. This generates incentives to finance the debtor's crisis.
The reorganisation process can be promoted either because the debtor is already in default before two or more creditors representing debts equal to or greater than 10% of the total liability, or because it reasonably expected for the debtor to be in a situation of inability to pay, depending on the cash flow. The latest is an insolvency prevention tool.
The insolvency statute pursues the protection of credit and the recovery of feasible companies, which are considered sources of wealth and employment. Under no circumstances should the insolvency procedure be used to avoid payment of debts or to defraud creditors, because the process is based entirely on the good faith principle.
The entire business reorganisation process is conducted before the bankruptcy judge and sometimes with support of a third party, an insolvency professional, who acts as a supervisor in favour of timely and quality information for creditors and as a conciliator in the event of disputes arising from claims that, if not resolved, are decided by the judge.
The request to initiate a reorganisation process may be filed by the debtor, its creditors or the entity that supervises the market sector he belongs, when they consider that the objective causes foreseen in the law for this purpose are fulfilled. In the case of an application filed by creditors, the debtor is entitled to prove his solvency in order to avoid the procedure.
The process can be divided into three phases: the first from the application to the definition of the payment order, which usually occurs in a hearing called the qualification and graduation of credits hearing; the second phase occurs between qualification and graduation stage, and the confirmation of the reorganisation agreement, which occurs in a hearing before the judge, in which a control of legality is applied to the agreement, particularly regarding the votes obtained. Finally, the third phase is the execution of the agreement or reorganisation plan, a period in which the examining judge retains jurisdiction to rule on the possible breach of the agreement.
The law provides for the existence of three types of credits which can be recognised:
With respect undoubted credits, the debtor must inform the judge and all creditors may object to that information, in which case they must provide documentary evidence of the existence and extent of the credits in their favour. As for conditional and litigious credits, as there is no certainty of their existence, because they depend on future events, these creditors do not have voting rights, but they must be included in the agreement if in the future their claim gain certainty.
By virtue of the principle of universality or collectivity, everything resolved in a reorganisation procedure binds all of the debtor's creditors, whether or not they have presented themselves to the procedure. If a creditor arrives late and it turns out that it was not recognised, its debt is incorporated as untimely and will be paid after all the recognised creditors have been served. But if that credit was not included due to the bad faith of the debtor, it may be subject to severe penalties.
Generally speaking, the process is public and is handled through hearings that are broadcasted over the Internet. However, subjects may ask the judge to keep certain pieces of information confidential, depending on their nature.
Colombian law does not provide any mechanism to prevent the occurrence of a procedure of corporate reorganisation. The decisions of the competent judge cannot be appealed, but they can be controlled exceptionally through constitutional actions of protection, that are resolved by the ordinary superior courts and, in the second instance, by the Supreme Court of Justice, in very fast procedures, of no more than three weeks.
The insolvency rules do not regulate the negotiation procedure and the collection of votes necessary for the approval of the agreement or reorganisation plan, so that the debtor and the creditors have a wide range of discretion to advance these diligences, provided that the entire negotiation and voting takes place within the four months following the classification and graduation of credits, and the voted agreement must be presented before the expiration of this term, which cannot be suspended or extended. When this happens, the judge convokes a confirmation hearing to resolve whether the agreement can be confirmed. If it is not confirmed, the interested parties have a period of one week to correct the errors identified by the judge.
Once the process has been initiated, after the judge has reviewed the application for admission, the stay of all ongoing executions is generated and the initiation of new collection processes is prohibited so that all debts and all creditors are presented to the process in an orderly manner.
The debtor must continue with its normal operation, with the ordinary course of its business. During the procedure, the principle of conservation and continuity of contracts obligates the debtor to comply with his contracts, in order to prevent the misuse of the procedure.
In Colombia, the directors of the debtor companies continue to exercise their functions and there is no possibility the appointment of a third party by the court or creditors, as it happens in United States, with the administrator. There is a person, called a promoter, with the functions of an amiable compounder which generates trust for the creditors.
The company in reorganisation does not have any kind of restrictions to access credits during the process. In fact, there are incentives for this to happen, leaving the DIP financier in a privileged situation, in case of an eventual liquidation.
Creditors are differentiated according to the existence of guarantees in their favour. Among unsecured creditors, the law establishes differences and classes according to the nature of the debts, assigning special privileges to some, such as labour or tax-derived debts.
During the procedure, creditors may or may not be represented by lawyers, because although these are judicial proceedings, professional representation is not mandatory. On the other hand, there are no creditor organisations that can be established in a binding manner during the procedure even though, in practice, creditors are organised in blocks of interest. However, the reorganisation agreement must provide for the formation of a creditor committee, composed of those who creditors choose between external and internal creditors and has functions of supervision of the execution of the agreement, without in any case affect or interfere the administration.
Act 1116/2006 requires the presentation of accounting, financial and legal information, not only of the year of the filing, but also of previous years. Once the procedure is underway, the promoter, who may be a third party or the company's administrator, must submit periodic reports, which are available to all creditors and allow all relevant data to be captured correctly.
The voting rules allow certain conditions to be imposed on certain classes of creditors, provided that the necessary votes are obtained within the specific class they belong to. For example, a discount on capital may be approved for certain class, if a majority of the creditors in that class support it.
Credits recognised in reorganisation proceedings are freely negotiable and no authorisation is required.
In Colombia there are special rules that regulate the insolvency of business groups, legal concepts such as the coordination of processes and substantive consolidation, make it possible to efficiently manage the group's crisis. As for substantive consolidation, it is only possible to meet the payment of liabilities of a labour nature, and when this occurs the separation of assets between entities of the same group is restored. On the other hand, the rules foresee the possibility of pursuing the responsibility of a parent company, which will have to prove in the procedure that the insolvency situation of its subsidiary was not due to their actions.
In theory, the company retains the free administration of its assets, and must continue to execute its corporate purpose. However, when it comes to the sale of assets outside the ordinary course of business, during the process, the authorisation of the bankruptcy judge is necessary. Once the agreement is approved, this kind of acts must be submitted to what has been foreseen in the plan, which may consist of informing the Creditors Committee before executing the disposals.
As the debtor is always in possession, they are responsible for all disposition acts regarding assets of the company and for obtaining the authorisation of the judge, if this is required.
Any act of sale of assets that takes place within the framework of an insolvency procedure is understood as duly executed because it occurs before the bankruptcy judge, so it implies a fair title.
During the reorganisation process, it is possible to do any kind of business, especially if its result is favourable for the reestablishment of the company. In some cases, such as those that do not correspond to the ordinary course of business, the authorisation of the judge is required, with which the buyer is protected against eventual avoidance actions.
Although it is possible for the judge to order the release of certain assets, tied to collateral in favour of certain creditors, because it may be necessary for the continuity of the debtor's business, in any case the secured creditor's privileges are not lost as a result. If the assets are not necessary for the debtor, the secured creditor may dispose of them through the enforcement of the security, at the time the judge authorises it.
The existing rules facilitate and encourage the financing of the debtor in crisis, so that it is possible to constitute guarantees in their favour, without damaging the previous creditors, and the debt derived from the new injected resources has a special privilege that places it in first class, in the case a new guarantee is not constituted.
During the reorganisation process, the creditors’ claims, their extent and rights of those debts are openly discussed. It is the litigious component of the process and, although conciliation is promoted, disagreements are resolved by the bankruptcy judge who decides the ownership of the debts, their value and the order in which they must be paid.
The reorganisation agreement is a contract that is formed with the consent of the creditors, expressed through the assigned votes, following the majority rule. The aspects controlled by the judge are few, for example, the judge guarantees that the agreement does not alter the legal priority of claims, unless it has been done with the correct majorities, and that no creditor is degraded. In addition to this, the judge is the guardian of good faith among all the participants in the process, so that if they warn of fraud, they can end the procedure, begin the liquidation and inform the competent authorities in the case a criminal offense is found.
Although the general rule is the continuity of all contracts, Article 21 of Act 1116/2006 allows the termination of successive contracts that are harmful to the debtor, without prejudice to the fact that the counterpart to that contract may be compensated accordingly. The request for termination must be submitted to the judge and the inconvenience or onerousness of the continuity of the contract must be proven. In this case, nothing relating to the performance or non-performance of the contract can be discussed, the judge decides based on strictly economic and cost-efficiency criteria.
There is no special rule referring to non-debtor parties whose liabilities towards the debtor may be dismissed by the debtor if they contribute in any way to the realisation of the agreement. On the contrary, the rules provide that private agreements with recognised creditors are prohibited, so it is not feasible to release them from their responsibilities towards the debtor.
In reorganisation proceedings, the offsetting of claims is not permitted. The payment of the determined liability must be subject to the credit priority established by law.
Failure to comply with a reorganisation agreement results in a court order for liquidation. If a creditor denounces the breach, the bankruptcy judge requires the debtor to explain the situation and provide evidence of compliance. If they do not do so, or the explanation is not sufficient, the judge must convoke a default hearing, at which they can order, if the default persists, the company's judicial liquidation. In any case, there is always the possibility of reforming the reorganisation agreements in execution, without limit of times, if the same majority rules established for the approval of the agreement are observed.
Insolvency laws in Colombia provide for the absolute priority rule, whereby no shareholder of the company receives any payment until all external liabilities have been paid in full. Consequently, if all external creditors are paid and there are surplus assets, the partners may receive them in proportion to their shares.
In Colombia, the judicial liquidation procedure is unified. Whether its initiation is voluntary or involuntary, there is no difference in treatment beyond the cause invoked to initiate it which, in voluntary proceedings, is at the discretion of the debtor. As for involuntary liquidation, it may derive from an order of a government entity overseeing the respective market sector, a court order, a breach of the reorganisation agreement, or from the debtor's proven abandonment of the business.
The judicial liquidation procedure begins with the decision of the bankruptcy judge, and since the initiation various effects occur, such as the dismissal of all administrators, the termination of all contracts to which the company is a party of, or the impossibility of continuing to execute the corporate purpose of the company, unless its continuity is required to preserve the value of the assets.
The law only establishes procedural requirements for judicial liquidation promoted by the willingness of the debtor. In this case, the request must be accompanied by financial information covering the last few years and by an explanatory report of the reasons for the liquidation.
Once the judicial liquidation proceeding has begun, creditors have 20 days to present themselves to the process to submit their claims. The court-appointed liquidator, who is an auxiliary to justice but also a true corporate administrator, must prepare a project that gathers all the credits and a proposal for the payment order. Additionally, they must present an inventory with all the debtor's assets and its respective valuation. These drafts submitted by the liquidator are subject to challenge by the creditors, who may refute their contents by providing the relevant evidence. If these differences are not reconciled, the judge resolves them in a hearing of qualification and graduation of credits and approval of the valued inventory. In case of contingent creditors, whether they are conditional or litigious, the law orders the liquidator to set aside the assets to meet their payment, if assets are available for this purpose.
Regardless of the cause invoked, the law requires, for the beginning of a liquidation procedure, the existence of default of more than 90 days with respect to debts of creditors that represent at least 10% of the total liability of the debtor. In case this cause is not established, it is not possible to initiate the procedure and the possibility of making a private liquidation remains open, complying with the rules that regulate this operation.
The judicial liquidation proceedings have three phases. In the first phase, the total number of creditors, the value of their claims and the total assets available for payment are determined. This phase concludes in the hearing to solve objections to the qualification and grading of credits and to the valued inventory.
The second phase of the procedure covers the period of sale of assets, which by law is two months, and payment to creditors or adjudication of assets, if they have not been sold. The third phase includes the accountability of the liquidator and the order for the definitive extinction of the company as a legal entity.
It is important to point out that, in the judicial liquidation procedures, secured creditors have privilege for the satisfaction of their debts as they can request the exclusion of the assets in the guarantee from the estate in order to be paid in the agreed terms if they present themselves to the procedure and be recognised as secured creditors.
Claims recognised in judicial liquidation proceedings are freely negotiable. It is the burden of the assignee of the credit to prove its status as a debt holder at the time of payment. Although it is advisable to inform the liquidator about the assignment of receivables, the failure to do so does not invalidate the assignment and no judicial authorisation is required.
Once the judicial liquidation process has begun, all current collection proceedings must be incorporated into the insolvency procedure and it is prohibited to initiate new collections processes.
Once the process is initiated, all administrators and directors are immediately removed from office.
The law provides that, with the initiation of the process, all contracts the company in liquidation are party to are terminated. As this is the general rule, it is the burden of the liquidator to request and accredit before the judge the necessity to keep certain contracts in execution (for example labour or commercial contracts).
The applicable rules prohibit any form of legal compensation (as a way to extinguish obligations). In fact, a penalty is provided in the law for creditors who do so. The penalty for creditors who pretend a compensation is the deferment of their claims, which means all other debts will be payed to all other creditors before the deferred ones.
In judicial liquidation proceedings, creditors have full access to all relevant information on the debtor, in particular, information relating to the assets and liabilities.
If the liquidator manages to sell all the assets, they must arrange for payments to be distributed among the recognised creditors. If the liquidator is unable to sell the assets within two months, or has only sold part of them, they must pay the creditors in cash, following the order of priority, until the assets are finished. After this, all other creditors will receive unsold assets. Creditors can vote to decide how unsold assets are distributed, and if they fail to reach an agreement, the judge decides. Once the payments have been made, the liquidator must present his final report that is provided to the creditors for their comments or challenges, afterwards, the judge decides confirms or comments on the report, before finishing the process.
The only authority entitled to dispose of the assets of the liquidation is the liquidator. The judge may not authorise or prevent the liquidator from disposing of the assets, given that the liquidator does so in accordance with the provided procedural and substantial guidelines, and then reports on it to the judge and creditors.
In the framework of the liquidation procedure, whoever acquires assets from a judicial liquidation does so free of all liens or limitations on property. There are no legal restrictions for creditors recognised in the liquidation procedure to acquire or participate in the acquisition of the liquidation assets.
Once the judicial winding-up process has begun, the liquidator cannot begin private negotiations with creditors, who must be treated with absolute equality (as to the exercise of their legal rights).
In case of a breach of the asset allocation agreement, the liquidator or the defaulting creditor may be subject to a liability process. However, in cases where the liquidator fails to comply with the agreement and the physical delivery of movable or real estate property, there will be a liability process if some creditors sue within five years from the date of approval of the final account settlement.
The law allows creditors, who during the reorganisation of the debtor injected new resources or financed its crisis, to maintain the priority acquired during the liquidation of the company.
Colombian legislation provides special rules for the liquidation of enterprise groups, as indicated in 6.6 Use of a Restructuring Procedure to Reorganise a Corporate Group.
As indicated in 6.3 Roles of Creditors, no creditor structure with separate representation is configured during the procedure. In judicial liquidation, a committee can be created to follow up the plan for awarding assets that have not been disposed of.
The sale of assets by the liquidator must be preceded by an appraisal approved by the judge. The liquidator can freely present the assets as a whole or as piecemeal, and the valuation they present must be consistent with this. The sale can only occur within the two-month period, with no extensions and no suspensions. The minimum price of the assets must be indicated in the appraisal approved by the judge.
In Colombia, Act 1116/2006 adopted the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law, which has been adopted by more than 40 jurisdictions around the world, with a universalist and non-territorialist approach to the cross-border crisis situation. Consequently, it is possible to recognise foreign proceedings, parallel to those initiated in Colombia, ensuring, in any case, the communication, co-ordination and co-operation of the competent judge with all other judges involved.
If the court in which the foreign insolvency procedure has taken place has not included the model legislation, there is no legislation that prevents the Colombian judge from attending and designing the protocols for the purpose of co-ordinating the procedures.
The determination of the prevailing jurisdiction depends on the analysis that the insolvency judge makes of the COMI (centre of main interests) of the debtor, for which they can provide a large number of criteria that have been assigned by international jurisprudence.
In Colombia, foreign creditors receive the same treatment and the same rights as local creditors and must submit to the resolution of the proceedings.
The insolvency regime provides for the existence of two figures that intervene in the proceedings. On one hand, there is the promoter, for business reorganisation procedures. According to 6.2 Position of the Company, the promoter does not run the company, but facilitates the process and assumes special procedural burdens. This task can be carried out by the debtor's own legal representative, or by a professional appointed by the bankruptcy judge. On the other hand, in judicial liquidations, this function can only be performed by professionals selected by the Superintendence of Companies, chosen from a list of specialised lawyers who followed a rigorous selection process. These lawyers are appointed as Auxiliaries of Justice, but also are true administrators, in such a way that their liability regime is determined by the same rules that operate for corporate directors, with special duties before the tax authority whose non-compliance may compromise their responsibility. Auxiliaries of Justice must be remunerated in accordance with the amount of the assets and the complexity of the procedure; their remuneration cannot exceed the equivalent of 6% of the value of the assets.
The Promoter, in reorganisation processes, can be the company's own administrator or a third party. If it is a third party, their name should be chosen from a closed list of people who passed an exhaustive selection process. The role of the Promoter consists of acting as an amiable compounder and conciliator who facilitates negotiations, prepares qualification and credit grading projects, drafts the reorganisation agreement, collect and recounts the votes and presents the agreement before a competent judge. Given that the Promoter is not an administrator, they have no fiduciary duties in their charge. The fact that they are an auxiliary of justice does not make them a subordinate of the insolvency court, and their remuneration is regulated so that for a monthly fixed rate during a period of time.
The Liquidator, on the other hand, as seen in 9.1 Types of Statutory Officers, is an administrator, with fiduciary duties before the creditors, of whom they are ultimately the trustee. It is the duty of the liquidator to prepare the qualification and graduation projects of credits and the valued inventory, to sell the assets, to pay the recognised debts, and to render accounts.
The justice auxiliaries are selected by the competent judge from a list drawn up and administered by the same Superintendence of Companies. This list is composed of a group of specialists who meet the requirements set forth by law, such as experience and studies related to insolvency. In addition, they must undergo periodic knowledge tests to maintain their positions on the list.
In certain cases, the Superintendent of Companies may, in an exceptional and motivated manner, select an individual who is not registered in the list for the position of promoter or liquidator, but only if the situation of the company in the process of reorganisation or liquidation may have a significant impact on the public economic order, or if there is a critical legal situation in the company supervised by the Superintendence of Companies.
With respect to the promoters, this position may be exercised by the legal representative of the debtor company, by an individual who is a professional businessman, by an auxiliary of the justice registered in the list of the Superintendence of Companies or by a person designated through the exceptional selection mechanism seen. The liquidators must be professionals registered in the official list.
In any case, the rules provide that, at any time, creditors representing at least 60% of the recognised claims may request the replacement of the liquidator appointed by the bankruptcy judge and his replacement must be selected from the list of auxiliaries to justice from the Superintendence of Companies. Likewise, creditors may request that a professional third-party act as a promoter in reorganisation procedures.
In Colombia, it is common for insolvency proceedings of a certain size to be accompanied by experienced lawyers, accountants and financial advisers. These teams are usually much more complete when the promoter is the debtor's administrator. The promoter and the liquidator also have their own teams of professionals.
In most cases, the debtor company is responsible for the expenses incurred as a result of the fees of the advisors or the team of the auxiliary of justice.
The judge does not interfere regarding advisory teams in reorganisation proceedings. However, in liquidation proceedings, the judge can control (ex post) the liquidator's expenses and decide whether they have been excessive (for example, when there is an excessive number of advisers). This type of conduct has an impact on the determination of the liquidator's fees and their payment in full at the end of the proceedings.
The promoters in the reorganisation processes, when they concur with the role of administrators of the companies in insolvency, must follow the duties of diligence and loyalty. If the function is performed by a professional third party, their duties are valued against the process, the judge and the subjects of the procedure. In the case of the liquidator, as an administrator they have the typical duties of conduct of the administrators, not before the dissolved company but before the creditors, through the fulfilment of their procedural burdens. The liquidator’s ultimate duty is to maximise the value of the assets to pay as many creditors as possible. For the precise duties of conduct in proceedings, refer to 9.2 Statutory Roles, Rights and Responsibilities of Officers.
According to the insolvency regime, in Colombia the only judicial authority that can administer insolvency proceedings, be they liquidation or corporate reorganisation, is the Superintendence of Companies. There are no rules regulating the arbitration of the insolvency situation. However, the current regulation indicates that the insolvency judge can also have the role of a conciliator.
There is no rule establishing the obligation to concur to arbitration or mediation in the framework of an insolvency process.
Particular agreements on dispute resolution do not interfere with insolvency rules. The only restriction is that through such procedures it is not possible to enforce the payment of debts owed by the insolvent debtor, because the process does not permit such parallel actions.
In Colombia, Law 1563/2012 contains all the regulations on arbitration, based on principles such as impartiality, suitability, celerity, concentration, equality of the parties, orality, immediacy, confidentiality, privacy, integrity, due process and contradiction. Mediation is not regulated in Colombia, but nothing prevents the parties from providing what is necessary to access a commonly agreed and binding mediation scenario.
The appointment of arbitrators and mediators corresponds to the will of the parties as negotiated in the agreements establishing the conditions and guidelines to be complied with. In the case of arbitrators, the power of selection may be delegated to an arbitration centre, such as those administered by the Chambers of Commerce of Bogotá or Medellín.
In Colombia, company directors must comply with two basic duties: care and loyalty. Jurisprudence has recognised the business judgment rule as a way to mitigate the scope of the duty of care. Regarding insolvency, the administrators are not obliged to file for bankruptcy, so the financial situation of the company may take time to become known.
However, there is no rule indicating that directors of companies in distress at any time must comply with specific duties of conduct vis-à-vis their creditors. Even though this situation may generate late filing for bankruptcy protection, directors may be held liable if their conduct deteriorates the financial situation or deepens the situation of insolvency.
The grounds for admission to insolvency proceedings are objective. In case of a reorganisation procedure, the default or the imminent default is required. In the case of liquidation, the default is required.
Only in judicial liquidation, in which a professional third party intervenes, are duties of conduct observed towards the creditors, through the fulfilment of the charges and duties to be followed by the liquidator.
Administrators may be liable for all damages caused to creditors or third parties by their conduct and, in some cases, may be liable for the debts of the company they manage, when specific causes of greater gravity occur, such as fraudulent use of the company to the detriment of creditors.
In addition to patrimonial liability, administrators may be subject to personal sanctions, such as inability to professionally perform commercial business in Colombia for up to ten years, as well as the imposition of administrative fines. In the case of liquidators, they can be removed from the proceedings and even from the list of liquidators. Finally, in Colombia there are crimes directly associated with the actions of the administrators, such as unfair administration and the use of privileged information.
The creditors have direct action against the administrators, for tort liability. If the administrator is the liquidator, the creditors can request their removal from the procedure and from the list of liquidators and pursue their responsibility in a separate proceeding before the same judge of the insolvency procedure.
In Colombia, the chief restructuring officer is not a usual figure, given that there are no rules that regulate it. In any case, it is possible that there are corporate governance manuals that require it.
Shadow or de facto directors can be declared by the competent judge. In these cases, once the judge has declared that a person acted as administrator, their responsibility is subject to the same rules as the jure directors. The rules do not limit the subjects who may be shadow or de facto administrators, so it is possible that even a creditor may be recognised as such.
Both partners and administrators may be liable to creditors when their fraudulent and seriously negligent conduct causes damage to the assets that serve as a source of payment to creditors. This action is processed in a separate scenario before the same judge of the bankruptcy, as indicated in Article 82 of Law 1116/2006.
During the insolvency process, historical transactions, such as the avoidance of certain acts or business carried out by the debtor, may be requested before the bankruptcy judge when such acts have harmed any of the creditors or affected the order of priority of payments, as long as there is a notice of insufficient assets in the case of judicial liquidation.
Avoidance actions can be promoted to reconstitute the debtor's assets against three types of acts, each of which is assigned a different look-back period. For onerous acts of disposition of assets, the suspect period is 18 months, counted back from the beginning of the process. For gratuitous acts of disposition of assets, the suspect period is 24 months. For statutory reforms involving a reduction in the company's assets or a change in the company's liability regime to the detriment of creditors, the suspect period is six months.
Claims to set aside of annul transactions may be promoted by any creditor, promoter or liquidator within the six months of the date on which the rating and grading of credits and voting rights becomes final.
Appraisers play a determining role in the judicial liquidation process, especially for the purpose of exploring the most suitable disposal scenario, whether as going concern or piecemeal. The legal regime for valuers is contained in Law 1673/2013.
Appraisals are mandatory during the preparation of valued inventories in judicial liquidation processes.
Due to recent regulation of the professional trade of valuers, there are no specific lines of jurisprudence. In any case, for example, in judicial liquidation proceedings, it is legally impossible to sell assets for less than the value established by the appraisal approved by the judge. The law provides for certain valuation criteria in liquidation proceedings that depend on the nature of the assets being valued:
Carrera 7 No. 71 - 21 Torre B Of. 602
+57 1 317 4720
+57 1 317 3032www.dlapipermb.com