A comparative analysis of the stay in formal insolvency procedures Sample Clauses

A comparative analysis of the stay in formal insolvency procedures. How will Member States deal with asset deployment during the stay and the protection of secured creditors? And how likely are secured creditors going to be affected by the provisions on executory contracts after implementation of the Directive? To answer these questions, I have analysed how a stay affects the rights of secured creditors in encumbered assets in some Member States’ (formal) insolvency procedures aimed at restructuring. I selected Austria, Belgium and the Netherlands as relevant jurisdictions for this comparative analysis as these three countries have 41 Even if Member States consider the security agreement ‘executory’ they may still choose not to apply the stay to security agreements if they consider such contract to be non- essential. 42 Preamble to the Restructuring Directive, para 1 and 13. 43 § 451 (1) ABGB; ECLI:AT:OGH0002:1954:RS0010394. relatively new or upcoming legislation on pre- insolvency procedures and have different approaches to the continued disposal of encumbered assets during a stay. Austria is on one end of the spectrum as it allows for the continued disposal of encumbered assets during a stay. The Netherlands is on the other end of the spectrum as the continued disposal of encumbered assets during a stay is left to the discretion of the secured creditors. For each selected country, I will first introduce the types of security rights in movables. Secondly, I will discuss the effects of the stay on secured creditors in general and subsequently on secured creditors with executory contracts.
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