The reform of the Bankruptcy Law includes this figure, which is required by the Directive in certain cases

This figure, newly created in Spanish law, is included in title IV of the new rule, and is mandatory in certain cases, outside of which the appointment is not necessary, unless the debtor or a majority of creditors request it. .

This title contains the rules relating to the appointment of the expert and the status of the expert, their functions, duties and liability regime.

The design that the law has made of this figure is closer to that of a mediator who facilitates the negotiation between the parties, helps debtors with little experience or knowledge in terms of restructuring, and eventually facilitates judicial decisions when a dispute arises between the parts.

His most relevant material function is perhaps the responsibility to prepare a report on the value in operation of the company in the case of non-consensual plans. The expert in no case intervenes or supervises the powers of administration and patrimonial disposition of the debtor. Hence, that name has been chosen, instead of the one used by the Directive

The appointment of the restructuring expert

The request for the appointment of a restructuring expert may be accompanied by a request for the debtor to be replaced in his powers of administration and disposal of the assets, which would then be assumed by the expert.

In these cases, the debtor may object, not to the appointment of an expert in the restructuring, but to the substitution of said powers, when he is not in a situation of current insolvency.

In this case, the judge may agree on the appointment of the expert with mere powers of intervention. The debtor and the creditors with a majority of the liabilities may agree on the appointment of an expert in the restructuring and also on his remuneration.

If there is no agreement, the appointment of the expert will be made by the judge from among those registered on the lists of experts for the restructuring.

As a general rule, the remuneration will be borne by the person requesting the appointment, and this will be set by negotiating professional fees between the applicant and the professional.

This issue, as well as everything related to the new treatment of insolvency that the transposition of the EU Directive 2019/1023 entails, will be addressed in depth at the new Lefebvre Bankruptcy Congress, which will be held on September 29.