Formation of Classes in German Preventive Restructuring Frameworks under the StaRUG. (RI §427063)  

The German transposing legislation for the Directive on preventive restructuring frameworks contains provisions concerned with the mandatory and optional formation of classes. The wording of the provision for optional class formation raises questions as to how certain prerequisites are to be understood. It is also unclear whether an unlawful (optional) formation of classes will always affect the restructuring undertaking in the same manner. This paper aims to provide some insight into these topics while giving an overview of case law and the legal literature concerned with this, in particular to solo-party classes. Furthermore, the possibilities of legal review and legal remedies regarding the formation of classes will be outlined.

I. INTRODUCTION; II. SEC. 8 & 9 STARUG – THE ESSENTIAL FOR CLASS FORMATION; III. THE FORMATION OF CLASSES; 1. Sec. 9(1) StaRUG – Mandatory class formation; 2. Sec. 9(2) StaRUG – Optional class formation (subclasses); IV. LAWFULNESS OF OPTIONAL CLASS FORMATION – FINDINGS IN CASE LAW AND LITERATURE; 1. Relevant economic interests and appropriate delimitation (Sec. 9(2) sentences 1 and 2 StaRUG); 2. Appropriate and inappropriate delimitation criteria; 2.1. Appropriate criteria; 2.2. Inappropriate criteria; 2.3. Cumulation of appropriate and inappropriate criteria; V. LEGAL REVIEW & LEGAL REMEDIES; 1. Legal review of class formation before court confirmation proceedings; 1.1. Two variants: Debtor’s autonomy or judge’s discretion; 1.2. Optional involvement of a restructuring practitioner; 2. Legal review during court confirmation proceedings; 3. Legal remedy concerning the formation of classes; VI. CONCLUSION; VII. BIBLIOGRAPHY.

Palabras clave: German Preventive Restructuring Framework; StaRUG; formation of classes; legal review of class formation.;