Answer ... Mandat ad hoc and conciliation:
(a)(b) Debtor/directors of the debtor
Business runs as usual and the debtor remains in possession. Directors are assisted by the mandataire ad hoc or conciliator they have chosen.
(c) Shareholders of the debtor
There are no specific requirements with respect to shareholders (which may be unaware of such confidential proceedings).
(d)(e) Secured creditors/unsecured creditors
Negotiations with the main creditors take place on a purely amicable basis. Waivers cannot be imposed, with the exception of grace periods.
(f) Employees
There are no specific rules or requirements with respect to employees, who are usually not aware of the proceedings, except in case of approval of the conciliation agreement by the court, for which the employees’ representatives shall be consulted.
(g) Pension creditors
There are no pension creditors.
(h) Insolvency officers
The mandataire ad hoc or conciliator can be any independent third party to the debtor, but in practice, he or she is chosen among the 150 judicial administrators registered on the French national list. His or her role is freely determined in the nomination court order, depending on the needs of the debtor. He or she has no coercive powers.
(i) Court
Only the president of the court is involved in mandat ad hoc and conciliation proceedings. His or her role is limited to the nomination of the mandataire ad hoc or conciliator, who regularly reports to him or her. In case of conciliation proceedings, the debtor may choose to have the agreement acknowledged by the president of the court or have it formally approved by a judgment of the court (in which case confidentiality is lost).
Safeguard proceedings:
(a)(b) Debtor/directors of the debtor
The debtor and/or its directors remain in possession, but are supervised or assisted in the business administration by a court-appointed judicial administrator. Their role is to prepare the draft safeguard plan, with the assistance of the judicial administrator.
(c) Shareholders of the debtor
As a matter of principle, the shareholders retain control of the company. The draft safeguard plan cannot involve the sale of the business as going concern (ie, an asset deal), so the shareholders have a guarantee that they will not ‘lose’ their asset. However, they may be diluted if the plan includes debt-to-equity swaps, which cannot be imposed on them unless very strict conditions are met.
(d)(e) Secured creditors/unsecured creditors
Creditors must file proof of their claims, unless they have been ‘pre-filed’ by the debtor itself (see question 4.7). They must vote on the draft safeguard plan and can make proposals or suggest an alternative plan to the debtor’s. They are entitled to request their appointment by the insolvency judge as controller (‘controleur’).
(f) Employees
Employees are involved in the proceedings via their representatives, who are invited to the main hearings in order to give their non-binding opinions.
(h) Insolvency officers
The court appoints one or more judicial administrator(s) with a mission to supervise or assist the debtor in the administration of its business activities and the definition of the safeguard plan; but the management remains in place, especially for day-to-day business activities.
The court also appoints one or more creditors’ representatives.
(i) Court
Safeguard proceedings are essentially court-driven proceedings in which key decisions must be authorised by the court (eg, safeguard plan). Other transactions, such as payment of certain pre-filing claims, should be authorised by the insolvency judge (‘juge-commissaire’).