Insolvency 2020

Last Updated November 19, 2020

Bahrain

Law and Practice

Authors



Hassan Radhi & Associates was founded by Dr Hassan Radhi in 1974 and within a few years, it topped the list of the most reputable and leading law firms in Bahrain and in the Gulf region. The number of associates presently working at the office, including the partners, is 17, apart from the trainee lawyers, paralegals and articled clerks. The firm’s general practice extends to all facets of law. The firm represents its clients in all courts of Bahrain as well as in domestic and international arbitration. The firm also appears in Bahrain’s largest transactions in the financial and corporate sectors, including the issuance of bonds, sukuk, IPOs, M&A, and investments. The firm has solid experience in terms of financial restructuring, wherein it has assisted a number of clients (whether debtors or creditors) in consensual restructurings, in addition to having experience in voluntary and involuntary restructuring and liquidation. The firm is based in Bahrain and has been a member of the Lex Mundi Network since 2000.

Although there are no published statistics on the financial restructuring trends in the Bahraini market, it is notable that a number of local banks have given special attention to this activity in the financial market lately. The aim of these banks by creating such new divisions is to focus on helping their clients to navigate the current market environment, by putting their companies back on the path of growth, and giving them the ability to resume making positive contributions to the local and regional markets.

Having said that, and as a reaction to the COVID-19 pandemic, the Government of Bahrain launched a number of measures, including an economic stimulus package that aims to support businesses and individuals through a number of actions, including without limitation:

  • payment of all insured Bahraini private-sector employees for a certain period of time;
  • payment of individuals and businesses’ electricity and water utility bills for a certain period of time;
  • exemption of individuals and businesses from municipality fees for a certain period of time;
  • exemption from government-owned industrial land rental fees;
  • applying a six-month automatic moratorium for all loans, allowing for debt instalments to be deferred.

As a result of the economic support package, businesses have managed to get through the past few months of the COVID-19 period without seeing a major change in the market trends in terms of financial restructuring and insolvency applications. This situation is expected to change in the event that the COVID-19 pandemic continues and businesses are not able to continue without being supported if their operations are not fully and normally resumed.

In terms of bankruptcy applications before the courts of Bahrain and since the Law No 22 of the year 2018 promulgating the Reorganisation and Bankruptcy Law (the Bankruptcy Law) was issued, the list of applications is published on the Ministry of Justice’s website. The proceedings published so far were all initiated by the debtor.

In the Kingdom of Bahrain, a number of laws come into play when it comes to reorganisation, liquidation and insolvency of entities, depending on the activity of the entity and the nature of action in question.

When it comes to financial institutions licensed by the Central Bank of Bahrain (CBB) (the CBB Licensees), Law No 64 of the year 2006 promulgating the Central Bank of Bahrain and Financial Institutions Law (the CBB Law) provides for a regime of administration and liquidation that applies specifically to insolvent CBB Licensees and which shall be conducted under the supervision of the CBB, which is the regulator. The process provided for under the CBB Law commences with a period of administration, whereby the CBB-appointed administrator shall attempt to restore and enhance the position, failing which the CBB Licensee shall then move to the liquidation phase through a court process.

With regard to other commercial entities or individuals practising a commercial activity in Bahrain, the Bankruptcy Law shall apply when such entities become insolvent. The objective under this law is, where possible, to restore the entity or individual’s financial position, to the extent possible, and to capitalise on the assets thereof and try to protect them to enhance the benefit therefrom for the entity's/individual’s creditors.

Legislative Decree No 21 of the year 2001 promulgating the Commercial Companies Law (the Commercial Companies Law or CCL) shall apply in the event of voluntary liquidation for both CBB Licensees and other entities taking one of the forms of companies set out under the Commercial Companies Law.

Voluntary Process

Voluntary liquidation is provided for under the Commercial Companies Law, whereby the company shall dissolve in the event that the partners/shareholders unanimously decide to dissolve it, the duration thereof expires, or when the assets of the company are destroyed, rendering its continuity pointless (Article 320 of the CCL). Pursuant to Article 325 of the CCL, every company in a dissolution position shall be liquidated. The process of voluntary liquidation is supervised and controlled by the shareholders/partners, who will be empowered to appoint the liquidator. The process will generally be supervised and monitored by the Ministry of Industry, Commerce and Tourism.

Involuntary Process

This shall be done through the CBB for CBB Licensees, whereby the CBB may place the licensee under administration or request the competent court to place the licensee under or liquidation, as need be. The process will be supervised by the CBB.

For non-CBB Licensees, the process of involuntary reorganisation or liquidation of its assets shall be done in compliance with the Bankruptcy Law, whereby the insolvent debtor or an interested creditor may file an action before the court requesting commencement of the re-organisation or liquidation process. The court, once convinced that the requirements set out under the law have been met, shall appoint a bankruptcy trustee who will be mandated by the court either to assist in the plan to reorganise or liquidate the entity.

Article 6 of the Bankruptcy Law provides that the debtor shall file a petition to commence the bankruptcy proceedings in the event of (i) failure to pay its debts within 30 days from their due date, or should such a failure be expected for upcoming due dates, and/or (ii) the total indebtedness amount exceeds its assets. While the Bankruptcy Law stipulates that the failure to pay debts within 30 days of them becoming due gives rise to a bankruptcy action, it does not specify a deadline for commencing an insolvency proceeding after the company’s failure to pay debts.

In respect of the CBB Licensees, placing one under administration is a decision taken at the initiative of the CBB itself when, among other events, the CBB Licensee is in financial distress. However, the administrator, the CBB Licensee or any of its creditors may submit a request to the competent court to place the CBB Licensee under liquidation.

Under the Bankruptcy Law, creditors of an entity may file a case before the court requesting the opening of bankruptcy proceedings in the event that (i) the debtor fails to pay its debts to the creditor after being served with a 30-day notice, and/or (ii) the total indebtedness amount exceeds its assets.

The CBB Law also provides the possibility for the creditors of a CBB Licensee to submit a request to the competent court to place the CBB Licensee under liquidation when it is in financial distress (insolvent) or is likely to become financially distressed.

Insolvency is not required for commencing voluntary proceedings. The unanimous approval of shareholders/partners shall suffice to commence any such process pursuant to the Commercial Companies Law.

In the case of the involuntary proceedings, the Bankruptcy Law sets out the criteria determining the existence of insolvency as follows: (i) the failure of the company to pay its debts within 30 days from their due date, or should such a failure be expected for upcoming due dates, and/or (ii) the total indebtedness amount exceeds such company’s assets.

In respect of the CBB licensees, the CBB Law stipulates that a licensee may be placed under administration if the licensee is or is expected to be in financial distress, but also if the licensee’s continuation to provide regulated services has resulted in inflicting damages on the financial services industry in the Kingdom, and in the case where the licensee’s licence is revoked or amended.

The CBB may, on the basis of these same reasons, apply to the competent court requesting the liquidation of the licensee. In respect of an application by the licensee’s creditors, such an application may be made on the basis of the licensee’s financial distress and failure to pay maturing debts.

Banks, insurance companies, credit institutions and other entities that operate in financial markets will be subject to the regime of administration and liquidation stipulated under the CBB Law (see 2.1 Overview of Laws and Statutory Regimes).

Any other entities that are registered as commercial companies pursuant to the CCL, without regard to their sector or their ownership, will be subject to the bankruptcy and reorganisation regimes stipulated under the Bankruptcy Law (see 2.1 Overview of Laws and Statutory Regimes and 2.2 Types of Voluntary and Involuntary Restructurings, Reorganisations, Insolvencies and Receivership respectively).

The laws of Bahrain do not contain any specific provisions that address restructuring and insolvency regimes for government bodies and authorities, as the aforementioned authorities may not be subject to insolvency. Restructuring or merging government entities may only occur pursuant to a decree issued by his Majesty the King, in accordance with the powers vested to him as per Article 39 of the Constitution of the Kingdom of Bahrain.

Consensual and out-of-court restructuring are common in Bahrain. Mergers and acquisitions of companies in financial difficulties, following a valuation and assessment of their position, is frequently seen in the Bahraini market.

Although not mandatory or required under the laws of Bahrain before initiating formal insolvency processes before courts, banks and financial institutions in Bahrain are also open to agree on restructurings on an amicable basis, whereby the banks will enter into a protocol with the debtor and set up a committee to supervise its management for a certain period of time to ensure the continuity and flow of income.

Consensual restructurings are not specifically regulated under the law. Hence, such restructuring shall be subject to the contractual terms agreed upon between the debtor and his or her or its creditors. It is to be noted that precedents of consensual restructurings are limited in Bahrain, to the extent these are made publicly known. The Bankruptcy Law allows for such a contractual reorganisation plan to be submitted to court for ratification.

In a typical consensual restructuring agreement, the management of the company will be run by the major creditors in co-ordination with small creditors, unlike the reorganisation arrangement under the Bankruptcy Law whereby the secured creditors do not take the lead. The fees and management process of the company are detailed and agreed upon under what is called a “protocol” with the aim to enhance the financial position of the debtor.

Typically in the implementation of consensual restructuring the creditors will closely monitor the activities of the company and subject most of its actions, in particular those that result in creating obligations over the assets of the company, to such creditors’ advance approvals.

Injecting new money shall be subject to the relevant parties’ agreement under the protocol.

Consensual restructuring is not specifically regulated under the law, hence the terms of the “protocol” shall apply in addition to the general rules  including without limitation of the Law No 19/2001 promulgating the Civil Code (Civil Code) and Decree Law No 7/1987 on the issuance of the Law of Commerce (Law of Commerce).

See 3.4 Duties on Creditors.

The provisions of the Civil Code and Law of Commerce enable creditors to take the following types of liens/security:

Mortgage over Immovable Property

Creditors may create security over immovable property (ie, real estate) pursuant to Articles 942-997 and 1019-1020 of the Civil Code. In order for a mortgage to be valid, it has to be evidenced via a notarised document. The mortgage should specify the the amount of the debt secured, or the maximum amount which that debt may reach.

Mortgage over immovable property shall be deemed effective against third parties from the date on which the mortgage is registered on the title deed of the property.

Mortgage over Movable Property (Possessory Pledge)

Creditors may create security of movable property in accordance with Articles 998-1018 and 1021-2014 of the Civil Code. In order for a possessory pledge to be valid towards third parties, the pledged movable asset must be held in the possession of the pledgee or by trustee nominated by the parties. The pledge agreement should specify the amount of the debt secured, or the maximum amount which that debt may reach.

Possession of the pledged movable by the pledgee or a nominated trustee is required in order for the pledge to be effective towards third parties.

Commercial Mortgage

Commercial mortgages are regulated under Articles 136-147 of the Law of Commerce.

Article 137 of the Law of Commerce defines the term "commercial mortgage" as any mortgage created over movable property as security for a debt which is deemed commercial for the debtor.

A commercial mortgage includes pledge of equity shares, pledge of bank account/deposit and other property (excluding real estate).

A commercial mortgage over a movable property requires that the possession of the mortgaged property pass to the mortgagee creditor or to a trustee nominated by both contracting parties and must remain in the possession of either of those parties until the extinguishment of the mortgage.

A commercial mortgage over rights established in deeds, such as equity shares and bonds, shall be mortgaged by way of assignment indicating that the instrument in question is mortgaged. The mortgage shall be registered in the records of the institution which issued the deed (and the register of the instrument) and on the deed itself. In practice, mortgage of equity shares shall be filed with the Ministry of Industry, Commerce and Tourism.

A commercial mortgage over rights established in commercial papers requires an endorsement on the instrument stating that it is by way of mortgage or any other statement to this effect.

Business Mortgage

Creditors may obtain security over the entire business of the debtor by following the procedures of business mortgage under Articles 43-49 of the Law of Commerce.

A business mortgage is a common form of security taken in the course of commercial activities, as the scope of a business mortgage is very wide and it may capture any aspects of the business that are expressly outlined under the mortgage document, which may include any tangible or intangible aspects of the business and any relevant right arising therefrom – save for rights that require specific procedures to be mortgaged, such as equity shares and real estate.

In order for a business mortgage to be valid, the mortgage documents shall be notarised and filed with the Ministry of Industry, Commerce and Tourism, and the registration must be renewed every five years.

Enforcing the secured creditor’s rights shall occur by way of sale in a public auction after submitting a petition to the court of execution. The secured creditor will have priority in receiving the amount of his or her or its secured debt out of the proceeds of the sale of the property.

An exception from the aforementioned procedure is enforcing security over financial instruments mortgaged to banks or financial institutions adhering to the CBB, as they are entitled by virtue of Article 147 of the Law of Commerce to enforce a commercial mortgage over financial instruments without resorting to the court.

In addition, and from a practical point of view, a pledge over bank accounts/deposits may be enforced by banks and financial institutions without resorting to the court by setting off the amount of the secured debt from the pledged account/deposits.

In the context of insolvency, the approval of bankruptcy proceedings shall result in a moratorium of claims (120 days) during which secured creditors cannot enforce their secured rights. Secured creditors will be able to enforce their security upon the end of the moratorium period as per Article 54 of the Bankruptcy Law.

The court will only approve the bankruptcy trustee’s request to extend the moratorium period upon (i) approval of secured creditors; or (ii) if any such extension is necessary to maximise the value of the bankruptcy assets.

The Bankruptcy Law allows secured creditors to submit an application to enforce their security rights by requesting the termination of a moratorium on secured debts in the following cases:

  • the moratorium is not necessary to maximise bankruptcy assets' value for the benefit of creditors or any stakeholder in the claim;
  • the encumbered property depreciates due to the commencing of bankruptcy proceedings and the secured creditor does not obtain appropriate protection from depreciation or any other loss during the period of the moratorium;
  • if the reorganisation plan did not get approval on the specified date; or
  • if the encumbered property is not necessary for reorganisation or for the potential sale of the debtor’s operating business.

Protection of the Encumbered Property

Pursuant to Articles 83 and 84 of the Bankruptcy Law, the secured creditor has the right of protection from depreciation in the value of the encumbered property and from any loss his or her claim may sustain. In this respect, the secured creditor is entitled to submit an application to the court requesting obtaining protection to his or her secured claim.

In addition, the law provides that the bankruptcy trustee may request the court to terminate the moratorium in the case where it is unable to protect the encumbered property. 

Secured creditors are treated differently under the Bankruptcy Law, as secured creditors may enforce their secured rights right after the end or termination of the moratorium period (see 4.3 Special Procedural Protections and Rights). Secured creditors have the priority in the proceeds of the encumbered property securing their claims.

In the context of reorganisation, a group of unsecured creditors with claims constituting not less than 25% of the total claims form the creditors’ committee. The creditors’ committee is entrusted with assisting the reorganisation trustee and following up its performance, giving those creditors the power to monitor closely and advise in relation to matters pertaining to the rights of unsecured creditors.

In terms of voting during reorganisation, different classes of creditors will be classified into different categories based on the similarity of their rights (ie, secured creditors, unsecured creditors, employees, other concessionaires and shareholders). All classes of unsecured creditors shall have the same rights in voting on the procedures of reorganisation plan.

The priorities of different classes of creditors are discussed in further detail in 5.5 Priority Claims in Restructuring and Insolvency Proceedings.

The Law does not specifically stipulate that trade creditors shall be categorised into a separate class during the process of reorganisation; however, the reorganisation trustee is empowered to classify the creditors on the basis of the similarity in their rights.

The rights and remedies of unsecured creditors include:

  • applying for interim measures to be taken on the debtor for the duration before the bankruptcy proceedings, such as imposing restrictions on the trading of the debtor’s business, assignment of the debtor’s business administration to a bankruptcy trustee or any other provisional measures determined by the court;
  • requesting and submitting a reorganisation plan and voting on the approval or dismissal of the debtor’s reorganisation plan;
  • trade creditors may recover any goods they sold to the debtor if the sale consideration is outstanding, within 45 days of the approval of the opening of the bankruptcy proceedings.

Furthermore, unsecured creditors may, if ordered by the court, be represented by a creditors’ committee which consists of no more than five members among unsecured creditors whose claims are initially accepted.

The role of the creditors’ committee includes exerting reasonable effort required by the circumstances to protect the interests it represents and consulting with the bankruptcy trustee on the procedures of bankruptcy.

In the context of reorganisation, the creditors' committee has the right to vote on the reorganisation plan and may further request the transition of reorganisation proceedings into liquidation proceedings.

Article 16 of the Bankruptcy Law provides examples for such precautionary measures, including:

  • suspension of the moratorium of claims (see 4.3 Special Procedural Protections and Rights);
  • imposing temporary restrictions on the debtor with regard to its business administration, conduct of its business procedures or limiting its administration powers over the business;
  • assignment of the debtor's business administration and facilities operation to a temporary bankruptcy trustee or any other appropriate person appointed by the court;
  • assignment of liquidation of the debtor's funds in the non-ordinary context of business to a temporary trustee or any other appropriate person appointed by the court if the funds are prone to loss, damage, or diminishing in value;
  • any other temporary or provisional measures determined by the court.

The Bankruptcy Law sets eight categories of priority for claims in relation to bankruptcy proceedings and after the payment of the rights of secured claims, and they are ordered as follows:

First Level of Priority

This is reserved for amounts due to any unsecured form of financing obtained after the commencement of the bankruptcy proceedings in order to finance the continuation of the debtor's facility operation or for the purpose of maintaining the value of bankruptcy assets and protection thereof.

Second Level

This level is for costs and expenses of the bankruptcy, including without limitation the fees of the bankruptcy trustee, lawyers, agents or experts who provide their services in the course of bankruptcy and amounts due on contracts entered into by the bankruptcy trustee or the debtor after the commencement of the bankruptcy proceedings. 

Third Level

The third level covers the following claims which arose prior to the commencement of the bankruptcy in proportion:

  • salaries and financial benefits due to the debtor’s employees, capped at BHD3,000 for each employee;
  • clients' claims for instalments paid to the debtor in order to purchase goods and services from the debtor, capped at BHD1,000 for each client;
  • taxes and fees due to government authorities and agencies, capped at BHD10,000 for each authority.

Fourth Level

All unsecured claims which arose before the approval of the commencement of the bankruptcy proceedings, including the remaining amounts of the claims outlined under the third level of priority, are covered by this level.

Fifth Level

This level includes all other unsecured claims which arose before filing for bankruptcy and were not presented to the court in time, but were presented to the court in a timely manner as regards the reporting of distribution rights in the bankruptcy claim.

Sixth Level

Claims for taxes and fees due to foreign governments are included in the sixth level.

Seventh Level

The seventh level covers unsecured claims to compensate owners for late payments due to them from the debtor.

Eighth Level

Shareholders' claim of their ownership of shares in accordance with the priority prescribed for each one is covered by the eighth level.

Upon admission of a petition for bankruptcy by the court, a temporary bankruptcy trustee is appointed to assess the position of the company/debtor. This assessment is done with the aim of deciding whether to proceed with bankruptcy or whether the debtor shall move towards liquidation altogether. The court is open to hear views of the relevant parties and the decision is also subject to objection by interested parties.

The reorganisation process is court-driven and is closely supervised by the court. Should the court decide to start the reorganisation process, the bankruptcy trustee (who is also referred to as the reorganisation trustee) shall supervise the reorganisation process, prepare the reorganisation plan and obtain approvals thereon. The authorities of the bankruptcy trustee in the event of reorganisation are set out under the Bankruptcy Law which contain, among others, the power to protect the assets of the debtor, improving the business of the debtor, obtaining the necessary financing to help manage and continue the debtor’s business, upholding and terminating contracts. During this process the debtor shall remain in business, in co-ordination with the bankruptcy trustee, and shall take actions within the normal course of business after the reorganisation process starts, unless the court decides otherwise. The bankruptcy trustee shall submit periodical reports to the court on the way the business is being run by the debtor.

A creditors’ committee of members not exceeding five unsecured creditors shall be formed. The composition of the creditors' committee is made up of creditors who are interested to be part of the committee and, after its announcement and hearing views of relevant parties, shall be composed of unsecured creditors whose claims together total not less than 25% of the total claims and have no material conflict of interest in representing unsecured creditors. The court may at its own initiative or upon request of interested parties constitute one or more additional creditors' committee(s) if it deems it necessary to represent different categories of creditors. 

The role of the creditors' committee, among others, is to provide the debtor or bankruptcy trustee with the required assistance, to monitor the financial position of the debtor and the way its business is being conducted and assess whether its continuity is in the interest of the creditors represented by it. The committee shall also take part in drafting the reorganisation plan, and it may advise on the sale of the debtor’s assets and submit requests or objections to the court to protect the interests of the creditors it represents.

Unless the court decides to grant a longer period, the bankruptcy trustee shall submit the reorganisation plan to the court within three months from the date of the court’s approval to commence the bankruptcy process. Extension requests submitted by the debtor, the bankruptcy trustee, the creditors' committee or any of the creditors (holding not less than 10% of the unsecured debts) are subject to the court’s assessment. The Bankruptcy Law also gives room to creditors who have not less than one third of the total debts to submit a reorganisation plan, in the event that the bankruptcy trustee fails to do so within six months from the commencement of the bankruptcy process and that the proposed plan is in the interest of the debtor’s assets.

The options provided under the Bankruptcy Law are wide in terms of the outcome of such a plan, which could cover selling all or part of the debtor’s assets to repay creditors and could invest with the remainder of the proceeds, introducing investors to the business, recapitalisation, merger, etc. Upon obtaining a preliminary approval on the proposed plan from the court, the bankruptcy trustee shall present the plan along with a disclosure statement to the creditors during a creditors' meeting set by the court and notified to all creditors whose debts are accepted by the court. Voting by creditors shall take place 30 days following its first presentation, or within 20 days of the date of its amendment based on the court instructions. Extensions are permissible upon the court’s approval. Voting shall be limited to creditors whose rights are affected by the plan and will be conducted based on the categories of creditors. The resolution shall pass upon approval of the majority of creditors in each category, provided that two thirds of the unsecured creditors are part thereof.

After the approval is issued by the creditors’ categories and the objections of other creditors are heard, the court shall decide to ratify or reject the reorganisation plan. Should the plan be ratified, it will be enforceable and effective vis-à-vis all creditors, including those who rejected the plan or abstained from voting.

The Bankruptcy Law provides for the possibility of appealing against the ratified and enforced reorganisation plan within 30 days from the date of ratification.

The Bankruptcy Law also provides for the possibility of the filing of a request by the debtor for the court to approve a pre-agreed reorganisation plan with its creditors.

A moratorium is applied by virtue of the general provisions applicable to reorganisation and liquidation. The moratorium shall continue until the time of entry into force of the reorganisation plan by the ratification of the court, or upon the lapse of 120 days from the date of the court’s approval to commence the proceedings when it comes to secured creditors.

During the process, the debtor shall remain in business, in co-ordination with the bankruptcy trustee, and shall take actions within the normal course of business after the reorganisation process starts, unless the court decides otherwise. The bankruptcy trustee shall submit periodic reports to the court on the way the business is being run by the debtor. The management shall be under the supervision of the court and the creditors' committee shall monitor  the process closely and provide its advice thereon.

The bankruptcy trustee is empowered to apply for financing to help the company manage its affairs and improve its position, subject to the provisions of the law.

Creditors are involved in the reorganisation process through their participation or representation in the creditors’ committee(s). The Bankruptcy Law provides initially for a creditors’ committee of unsecured creditors whose debts exceed at least 25% of the approved and accepted claims.

The criterion in distinguishing between creditors is whether their rights are secured or unsecured, and the law provides for some level of flexibility for the court, at its own initiative, or based on the request of creditors to modify the composition of the creditors' committee or to create more than one committee for different categories of creditors.

Creditors’ committee(s) or creditors owning not less than 10% of the total indebtedness may request the court to call for a meeting for a purpose to be defined by the creditors. Creditors, whether in the committee or otherwise, have access to information on the company and are given the right to attend a meeting called by the court for the presentation of the reorganisation plan and disclosure statement. A creditor may appoint a proxy to attend the reorganisation presentation meeting on his or her or its behalf.

In so far as the required majority approval is obtained and the reorganisation plan is ratified by the court, the plan shall be enforceable vis-à-vis all creditors, including those who were absent or raised their objection.

Any creditor who has voted for refusal of the plan shall have the right to obtain no less than the amount which he or she would have received in the event of liquidation.

Trading claims are not explicitly regulated under the Bankruptcy Law. However, they may be achieved as part of the reorganisation plan in so far as the action is done while maintaining equal treatment of the debtor’s creditors and that the proposed trading is beneficial to the debtor’s position.

Within the structure of a group of companies, each entity shall apply for bankruptcy independently. The court, subject to proving the interrelated transactions and consolidation of accounts, may consider joining the various actions for ease of process, provided such action does not entail any unfair treatment to creditors of these various entities within the group.

Following the commencement of the reorganisation process, the debtor, under the supervision of the bankruptcy trustee, may continue to run the daily business, unless the court decides otherwise after hearing the creditors' views. The acts falling within the normal course of action that may be conducted by the debtor are (i) buying and selling goods and services and settling payments related thereto, (ii) concluding and executing contracts and agreements with clients, and (iii) payment of employees’ salaries and entitlements except bonuses and other sorts of exceptional benefits. Any other acts relating to the assets of the debtor that are beyond the scope of the ordinary course of business shall require the court’s approval.

Once the reorganisation plan is approved and ratified, it shall be implemented in terms of the disposal and acts relating to the debtor’s assets. For instance, the reorganisation plan may provide for the sale of all or some of the debtor’s assets and the use of the proceeds thereof to settle the creditors’ claims or to invest in certain areas of the debtor’s business. As a consequence of the ratification of the reorganisation plan, all the assets of the debtor shall devolve to the debtor to be reorganised according to the plan, or to the reorganisation trustee or the person who receives those assets under the plan. The assets shall devolve clear of the claims and rights of others unless otherwise provided by the plan.

Disposal of the assets during the restructuring process shall be in line with reorganisation plan. The execution of the plan and the disposal of assets shall be by the debtor, the bankruptcy trustee or a representative of the debtor as directed by the court.

The reorganisation plan may contain provisions amending the terms of indebtedness of the different classes of creditors, including maintaining or releasing the security provided to the secured creditors over certain assets of the debtor.

The bankruptcy trustee may apply to the court to request its permission to obtain loans against security or other priority treatment. It is not clear under the law whether such security may be obtained over assets encumbered by a pre-existing secured creditor. However, the prevailing view is that obtaining security must not prejudice the claims of the secured creditors, and that giving up their secured position may be achieved with their approval as part of a reorganisation plan.

Creditors’ claims are submitted to the court at the commencement of the bankruptcy proceedings. The reorganisation plan shall contain a statement of all creditors and their respective claims. The statement shall also divide the creditors into groups and define the treatment to be received by each of these groups of creditors. Among the possible recommendations that may be contained in a reorganisation plan are the following:

  • amending the terms of payment of the debtor's debts, whether secured or not, including extending the date of maturity, or amending the interest rate or any other terms;
  • issuing bond debts or securities to creditors in return for existing claims;
  • distributing the proceeds of the sale of property or businesses from among the debtor's assets to the creditors;
  • cancelling the rights of shareholders for a consideration, or not;
  • exclusion of claims and financial rights.

The reorganisation plan shall be drafted in a manner that achieves the best results for the creditors but also deals with the creditors and interested parties in the proceedings with impartiality and fairness.

The bankruptcy trustee may rescind a contract entered into by the debtor, subject to the court’s approval, should the contract be deemed unfavourable to the interest of the debtor’s assets. The bankruptcy trustee may also make a request to the court if it wishes to assign contracts or nullify those contracts if they are considered fraudulent or harmful. The bankruptcy trustee may also request the court to nullify acts of the debtor granting certain creditors preferential treatment compared to others, except where the act was for an indebtedness created within the normal course of business, or if such preferential treatment is based on a financing relationship concluded within the normal course of business, or if the act was performed according to a commutative contract between the debtor and creditor through which the debtor is granted fair and reasonable value, or in the cases where the creditor was granted an additional consideration or a new amount to the debtor after the completion of the act, or if the bargain has not resulted in the decrease of the assets of the debtor available to fulfil the debts of the creditors.

The Reorganisation and Bankruptcy law does not provide for releasing non-debtor parties from their liabilities towards the debtor, but it gives the court the powers to order the payment of an alternative obligation.

The set-off right which has arisen before the filing of the bankruptcy proceedings may be pleaded during the bankruptcy proceedings if it was effective under the applicable law, but the initiation of the set-off right shall be subject to the stay of proceedings (moratorium), unless the set-off is invoked on the financial derivatives contracts. The set-off right shall not be effective if the creditor has obtained his or her or its claim through the debtor for the purpose of creation of a set-off right.

The court may convert the reorganisation process to liquidation in the event where it is proved that the debtor, after the filing of the reorganisation plan, has committed, in bad faith, acts that are detrimental to the creditors, or if the debtor has substantially breached the clauses of the reorganisation plan, or if his or her or its failure to implement the plan is proved.

Cancelling the rights of shareholders for a consideration, or not, may be among the proposals that are contained in the reorganisation plan, subject to the creditors’ vote and the court’s ratification thereof.

Creditors shall submit their claims (a detailed statements of the claimed rights alongside supporting documents) for the bankruptcy trustee after receiving a notification from the bankruptcy trustee to do so, within the specified timeline indicated in the trustee’s notification and in accordance with the requirements of filing a claim. The deadline for submission of claims may not exceed three months from creditors that are resident in Bahrain.

The aforementioned notification may alternatively be served on creditors and other interested parties in the notification of the opening of bankruptcy proceedings.

The validity of claims will be decided based on the applicable law governing the agreements between the creditor and the insolvent debtor, and the bankruptcy trustee may challenge the validity of such claims before the court by adhering to any defences that are available to the debtor.

The bankruptcy trustee shall be responsible for maintaining a register of all claims submitted by the creditors and shall submit a report to the court on the creditors' claims, and his or her opinion on the validity and amount of claims submitted to him or her. The court may decide the following in justified cases:

  • to dismiss the claim in whole or in part;
  • to restrict creditor voting rights;
  • to down-grade the creditor to a lower rank in terms of priority in receiving its claim. This may be decided by the court if the creditor intentionally overestimates his or her or its debts or rights, has illegitimately tried to gain special advantages to harm the rest of creditors, provided false or misleading data or withheld data, information, registers or documents from those that he or she is obliged to submit to the court or bankruptcy trustee.

The decision of the court in relation to the validity of claims will be notified to the concerned creditor accordingly.

Acceptance of the creditor’s claim will establish its right to participate in the bankruptcy proceedings, identification of the creditor’s priority rank and participation in the distribution process of the bankruptcy assets in accordance with its rank of priority (see 5.5 Priority Claims in Restructuring and Insolvency Proceedings).

Rights of Set-Off

The general position under the Bankruptcy Law is that creditors may adhere to their right of set-off if that right is established before the commencement of bankruptcy proceedings. However, exercising the right of set-off will be subject to the moratorium of claims (see 4.2 Rights and Remedies), unless the set-off is on a financial derivatives contract or if the implementation of the set-off will enhance the position of the bankruptcy assets, in which case the court may approve the effecting of the set-off by suspending the moratorium in relation to the debt in question.

Information Available to Creditors

The Bankruptcy Law states that creditors or any interested party may participate in the bankruptcy proceedings and obtain information on procedures and measures taken by the court or bankruptcy trustee.

The creditors will be bound by duty of confidentiality with respect to any information obtained in connection with the bankruptcy proceedings, which may include, without limitation, information on the financial position of the debtor, trade secrets and customers' lists, suppliers, research information, development and professional secrets and other similar information.

Generally, the commencement or approval of bankruptcy proceedings prevents the debtor administering his or her or its business, operating his or her or its facility, the use of funds and making the disposals that are within the normal course of business, unless the court decides otherwise.

Upon the appointment of a bankruptcy trustee, the bankruptcy trustee will be responsible for preserving the bankruptcy assets by undertaking the management of the debtor’s operations (if required and after the approval of the court) and exercising his or her duty of liquidating the assets of bankruptcy in cash by liquidating and selling them in accordance with the liquidation plan prepared by the bankruptcy trustee.

Purchasers of the insolvent debtor’s assets will acquire good title of the assets purchased. The provisions of the Bankruptcy Law do not contain specific rules governing bidding by the creditors for the company’s assets. The prevailing view is that there is no prohibition on selling the bankruptcy assets to creditors, as long as such disposal is in the best interest of the bankruptcy assets. 

Unsecured creditors may, if ordered by the court, be represented by a creditors’ committee which consists of no more than five members among unsecured creditors whose claims are initially accepted. The members of the creditors’ committee must have total unsecured claims of not less than 25% of the total claims, and have no substantial conflict of interests in the representation of unsecured creditors.

The role of the creditors' committee shall exert reasonable effort required by the circumstances to protect the interests it represents, and their duties include:

  • consulting with the bankruptcy trustee and the debtor on the procedures of liquidating bankruptcy assets;
  • follow up the performance of the bankruptcy trustee and the debtor;
  • submit any request or objection allowed by law to the court;
  • perform the work necessary to protect the interests of unsecured creditors.

The creditors’ committee is also entitled to request the court to stop the administration of the debtor’s business if ceasing the operations of the insolvent debtor will achieve the best interest of the bankruptcy assets.

The court may decide to appoint more than one creditors’ committee if it is deemed necessary to protect the interest of unsecured creditors of a certain category.

The creditors’ committee may, after obtaining the court's approval, designate an agent or technician on reasonable terms to represent the committee in the liquidation proceedings. The creditors’ committee shall bear the expense of the remuneration of the appointed agent, and may subsequently request the court to reimburse any such expense as an administrative claim (see 5.5 Priority Claims in Restructuring and Insolvency Proceedings). The court shall take into consideration the contribution of the agent to the bankruptcy proceedings before approving reimbursement of his or her expenses.

In the context of reorganisation, the creditors’ committee has the right to vote on the reorganisation plan and may further request the transition of reorganisation proceedings into liquidation proceedings.

Recognition

In order for foreign proceedings to be recognised by the courts of Bahrain, foreign creditors or their representatives are required to submit an application to the courts of Bahrain, accompanied by a copy of the decision of appointment of a liquidator in the foreign proceedings and a certificate of confirmation thereto from the foreign court, which shall be presumed by Bahraini courts to be in conformity with the Reorganisation and Bankruptcy Law as to the content of the decision and the terminology used therein.

The recognition of foreign proceedings shall result in:

  • a stay on any proceedings concerning the debtor’s assets, rights or obligations;
  • a stay on execution against the bankruptcy assets;
  • suspension of the debtor’s right to transfer, encumber or dispose of the bankruptcy assets.

The effect of recognition of foreign proceedings shall not prejudice the rights of creditors that are vested to them pursuant to the Bankruptcy Law, such as filing for commencement of local bankruptcy proceedings or taking any action to preserve the creditors’ claims.

Relief

The Bankruptcy Law entitles representatives of foreign proceedings upon making an application for recognition to apply for interim protection measures, such as staying execution on the debtor’s assets or entrusting that debtor’s assets to an administrator appointed by the court.

The foreign representative is further entitled, upon the recognition of the foreign judgment, to render ineffective acts detrimental to creditors, such as by intervening in any ongoing proceedings in which the debtor is a party, examination of witnesses and collecting evidence with regard to the debtor’s asset, and being entrusted with the administration of the debtor’s assets that are present in Bahrain.

The courts of Bahrain are required to co-operate with foreign courts either directly or through the bankruptcy trustee. The Bankruptcy Law allows the courts of Bahrain to communicate directly with foreign courts or foreign representatives of foreign insolvency proceedings in order to request assistance or information.

Examples of the forms of co-operation between the courts of Bahrain and foreign courts include:

  • the appointment of a person or body to act at the direction and decision of the court;
  • communication of information by any means considered appropriate by the court;
  • co-ordination of the administration and supervision of the debtor’s assets and affairs;
  • approval or implementation by courts of agreements concerning the co-ordination or implementation of proceedings;
  • co-ordination of concurrent proceedings regarding the same debtor;
  • any other methods of co-operation to be determined by a decision of relevant minister after the approval of the Supreme Judicial Council thereof.

The rules of the foreign jurisdiction will be applicable, unless those rules, decisions or laws contravene the public policy of Bahrain.

Foreign creditors are given equal rights and treatment with creditors in the Kingdom of Bahrain in respect of the commencement of or participation in any of the bankruptcy proceedings in the Kingdom.

The types of statutory officers who may be appointed in proceedings in Bahrain are as follows:

Temporary Bankruptcy Trustee

A temporary bankruptcy trustee may be appointed pursuant to the Bankruptcy Law as a provisional measure after filing for bankruptcy, and before the approval of opening of bankruptcy procedures.

Bankruptcy Trustee

A bankruptcy trustee is the statutory officer appointed upon the approval of opening of bankruptcy proceedings pursuant to the Bankruptcy Law.

Liquidation Trustee

A liquidation trustee is the name given to a bankruptcy trustee upon the commencement of liquidation proceedings of an insolvent company in accordance with the Bankruptcy Law.

Reorganisation Trustee

A reorganisation trustee is the name given to a bankruptcy trustee in the context of reorganisation as per the Bankruptcy Law.

Administrator/Liquidator

See 2.3 Obligation to Commence Formal Insolvency Proceedings.

Reorganisation and Bankruptcy Law

Generally, the bankruptcy trustee reports directly to the court and their duties and responsibilities include, without limitation:

  • preparation of a report, immediately following his or her appointment, on the debtor's assets of his or her or its business, all circumstances affecting the financial position of the debtor and expected developments;
  • preparation of a register to record the data of creditors, secured creditors, the amounts of their claims, the due date and the nature of their guarantees required on the assets of bankruptcy, attached therewith the documents that substantiate these claims;
  • preparation of existing contracts list;
  • administration of bankruptcy assets on behalf of the debtor if the debtor is not continuing to manage, supervise or control over the management of the assets;
  • request to invalidate the actions carried out by the debtor prior to the date of approval of the opening of bankruptcy proceedings;
  • collection of any debtor's funds or his or her or its rights due to others, and providing proofs of ownership of the debtor's funds or his or her or its entitlement thereon;
  • express his or her opinion on the proposed reorganisation plan and to provide assistance in its preparation;
  • set-off procedures between what is owed by the debtor to creditors and vice versa;
  • to present periodic reports about his or her activities and actions taken, the results of bankruptcy assets' management, his or her observations on the progress of his or her work and all the expected developments to the court;
  • prepare an inventory of debtor assets when commencing bankruptcy proceedings and to file the inventory to the court;
  • retention of receipts of funds and records of distributions he or she manages in the claim;
  • appoint lawyers or other experts as may be necessary.

The bankruptcy trustee shall be committed to implement his or her functions and duties honourably and faithfully, and make the aims of his actions in favour of bankruptcy to the fullest extent by maximising the bankruptcy assets, to do his or her best to implement his or her functions and duties, provided that his or her care is not less than that of the usual person who carries out those duties.

In the case of reorganisation, the reorganisation trustee shall assume the functions of overseeing the reorganisation management and the preparation and implementation of the reorganisation plan in order to achieve operational improvements to the debtor’s business. The reorganisation trustee shall also be responsible for ascertaining whether it is in the best interest of the debtor to continue with reorganisation or transit into liquidation.

In the context of liquidation, the liquidation trustee’s main responsibility shall be protecting the bankruptcy assets and protecting them from diminishing in value while maximising the bankruptcy assets to the utmost extent possible, sale of bankruptcy assets and distribution of the assets pursuant to the rank of priority and the manner stipulated under the law.

CBB Law

The Administrator’s main duty is to take all necessary measures, during the period of administration, to collect all of the entitlements due to the Licensee.

The CBB Law further states that the Administrator shall, within 30 days of assuming the administration of a Licensee, make an inventory of the rights, assets and liabilities of the Licensee. A report should be prepared on that inventory, and two copies made, one copy of which shall be kept at the principal place of business of the Licensee in the Kingdom and shall be available for inspection by creditors and other interested parties. The other copy shall be kept at the Central Bank. The aforementioned report shall be updated periodically to reflect any updates.

Within a period of two years, the Administrator shall conclude his or her tasks by submitting a petition to the competent court for compulsory liquidation of the Licensee or otherwise to terminate the administration and restore the management to the officials of the Licensee.

The provisions of the Bankruptcy Law states that the bankruptcy trustee may be appointed by the court on its own initiative or based on the nomination submitted by the creditors' committee or creditors who own at least 10% of the total unsecured debt.

The trustee shall be registered in the experts' panel in the category of reorganisation trustee in the case of reorganisation proceedings, or the category of liquidation trustee in the event of liquidation proceedings.

The trustee must be independent, impartial and free of conflict. The Bankruptcy Law further states that the trustee shall not be (i) one of the debtor's insiders, or (ii) a creditor to the debtor, his or her or its partner, his or her or its employee, or auditor, or his or her or its agent during the two years preceding opening of bankruptcy proceedings.

In cases where the bankruptcy trustee is appointed by the court, the creditors' committee may, if the bankruptcy trustee is inappropriate, request the court to appoint another bankruptcy trustee within 30 days from the date of the appointment of the bankruptcy trustee.

In the context of placing a CBB Licensee under administration, the CBB may assume the administration of a licensee or may appoint another person to conduct the administration of a Licensee on behalf of the CBB.

Removal and Replacement of Statutory Officers

The CBB Law is silent on the procedures and circumstances of replacing/removing an appointed administrator or liquidator (in the case of compulsory liquidation).

The Bankruptcy Law provides for certain circumstances in which the court by its own initiative, or pursuant to a request from a debtor, creditors' committee or creditors who own at least 10% of the total unsecured debt, dismisses the bankruptcy trustee from his or her duties. Examples of the aforementioned circumstances include:

  • a lack of the necessary efficiency, inability to perform his or her functions and duties, want of due diligence;
  • undertaking acts or dispositions contrary to the law or harmful to the assets of bankruptcy or creditors' interests;
  • a lack of impartiality or independence, the existence of a conflict of interest that justifies his or her dismissal;
  • gross negligence;
  • changing the function of the bankruptcy trustee;
  • removing his or her name from the expert's panel.

If the bankruptcy trustee is dismissed, a new bankruptcy trustee shall be appointed in accordance with the manner stipulated in the foregoing.

Under the CCL, directors may be held personally liable to the extent of their personal assets if they incur obligations on the company despite knowing that the company will not be able to meet such obligations upon their maturity. The liability of the director may be proven if the company incurred such obligations due to the director’s gross negligence or wrongdoing.

Upon the commencement of bankruptcy proceedings, and without prejudice to the moratorium of claims, the bankruptcy trustee shall undertake the defence of the company against any claims brought against it and will represent the company before the courts of Bahrain.

This will not prevent creditors from bringing an action against the director and the company jointly.

Since the bankruptcy trustee is entrusted with maximising the bankruptcy assets and collection of any debtor’s funds, the bankruptcy trustee may – if a judicial judgment is sought against the company and the director jointly – exercise the company’s right in bringing an action against the director for any liability or damages incurred by the company due to the director’s breach of his or her fiduciary duties or commitment of any act which gives rise to his or her personal liability.

The bankruptcy trustee is entitled to request that the court invalidate and annul any historical transaction if that transaction was carried out with the intention of defrauding creditors (whether future or present), or if that transaction is deemed detrimental to the creditors’ right in obtaining their claims.

The bankruptcy trustee may also apply to the court requesting the annulment of transactions (disposition and security) entered into by the debtor in circumstances where that disposition gives preference to a certain creditor over others, or if it may prevent the debtor from paying his or her or its debts upon their maturity.

The look-back period is open-ended and not restricted by the Bankruptcy Law. 

However, any such claim may be brought within six months from the date of the approval of opening bankruptcy proceedings, or within one year if the counterparty to that transaction is an insider.

Claims to set aside or annul transactions may be brought in both reorganisation and insolvency proceedings.

The claims for annulment must be brought by the bankruptcy trustee; however, the court may authorise the creditors’ committee to submit such claims directly in cases where the bankruptcy trustee refuses to submit the claim.

Hassan Radhi & Associates

18th and 19th floor
EBC Tower
Building 361, Road 1705, Block 317
Diplomatic Area – Manama
Kingdom of Bahrain

+973 17 535252

+973 17 533358

info@hassanradhi.com www.hassanradhi.com
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Law and Practice

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Hassan Radhi & Associates was founded by Dr Hassan Radhi in 1974 and within a few years, it topped the list of the most reputable and leading law firms in Bahrain and in the Gulf region. The number of associates presently working at the office, including the partners, is 17, apart from the trainee lawyers, paralegals and articled clerks. The firm’s general practice extends to all facets of law. The firm represents its clients in all courts of Bahrain as well as in domestic and international arbitration. The firm also appears in Bahrain’s largest transactions in the financial and corporate sectors, including the issuance of bonds, sukuk, IPOs, M&A, and investments. The firm has solid experience in terms of financial restructuring, wherein it has assisted a number of clients (whether debtors or creditors) in consensual restructurings, in addition to having experience in voluntary and involuntary restructuring and liquidation. The firm is based in Bahrain and has been a member of the Lex Mundi Network since 2000.

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