The Dutch scheme – Classes and voting

In previous blogs we have summarised when the Dutch Scheme can be used, who can make use of it and what action is required, and the high degree of flexibility that is offered by the Dutch Scheme.

In this blog, we further discuss how classes are created in the process of voting.

How are classes created?

• Under the Dutch Scheme, the debtor has a large degree of flexibility in setting the classes. The main rule is that parties should be in different classes if they have dissimilar rights in bankruptcy or under the Scheme. In addition, the debtor should place creditors with a statutory preferential right and contractually subordinated creditors in separate classes.

• Additionally, the legislator has determined fixed rules for certain categories:
  • Creditors holding security rights will be placed in a preferred class only in relation to the part of their claim that is actually secured, i.e. up to the amount of the value of the secured assets in a bankruptcy scenario. The remainder of their claim must be placed in a class of ordinary creditors. An exemption applies if the separation of the claim has no effect on the outcome of the distribution of the post-restructuring value. The determination of which part of the claim is secured will be based on the expected value of the security rights in a bankruptcy scenario.
  • Small enterprises with an unsecured claim for supplied goods, or a claim based on tort, must be placed in a separate category if they receive a distribution of less than 20%.

• Examples of possible classes that may be formulated include: a secured lenders class, a preferred creditors class, a trade creditors class, and a shareholders class.

• An incorrect formation of classes may lead to a court’s refusal of sanctioning the restructuring plan. In order to mitigate this risk, the debtor or restructuring expert can request the court to give a decision on the proposed classification prior to the voting.

How does the voting process work?

• The final restructuring plan has to be presented to the creditors at least eight days before the vote on the final plan takes place. This is to allow the creditors time to form a view on the plan.     

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• Only creditors whose rights are affected by the restructuring plan will be allowed to vote on the plan. If certain classes or certain creditors are excluded (e.g. trade creditors), that class is not entitled to vote on the plan.

• A restructuring plan is accepted within a class if a two-thirds majority (of the value of the claims within that class) vote in favour of the restructuring plan. There is no headcount test; only the value of the claims is relevant. The majority will be based on the creditors that actually ‘appeared’ in the voting (the value of claims of creditors that did not appear will not be taken into account).

• The voting process is flexible; it is possible to vote during a meeting or in writing. In both cases, the voting may also be done electronically.

• The voting rights can be granted to either the legal beneficiary or the economic beneficiary (if the two are not identical).

• If the voting rights are granted to the economic beneficiary, it is solely the economic beneficiary that is granted the other rights that are granted to the creditors under the Dutch scheme.

Points of attention.

• Forming classes is in part a balancing act. The creation of only a few classes containing creditors with different interests could lower the chance of an approval of the restructuring plan. At the same time, large classes can be attractive for the debtor because creditors can be outvoted within their class.  

• In case of disputes on ranking or formation of classes, or uncertainty regarding the classification, it is advisable to request the court to decide on the proposed formation of classes before the voting process.