Voluntary Procedure Act No. 15/2015, 2nd July

Written on 5 Aug 2015

On 23rd July 2015 the Voluntary Procedure Act (Ley de la jurisdicción voluntaria) came into force, except for some articles regarding adoption, voluntary auctions and family areas, which will enter into force in June 2017.

This article deals, from a procedural perspective, with the Title VIII “De los expedientes de jurisdicción voluntaria en materia mercantil”. This part contains cases both in a commercial area which are assigned to the Commercial Courts (disclosing the accounting books from those who are tasked to carry out the accounting and liquidation of the companies), and cases entrusted to the legal secretary of the court, whose knowledge is shared with the commercial registers (notice of general meeting or the general assemblies of debt holders, the reduction in the company’s capital, the cancellation or disposal of shares, and the appointment of a liquidator or auditor).

The main aspects are the following: 

Disclosing accounting books from those who are bound to carry out
the accounting and liquidation of the companies (articles 112 to 116)

Through the voluntary procedure set out in the Voluntary Procedure Act the disclosure of the commercial books may be carried out. For this purpose, both the commercial court of the domicile of the person who must disclose the accounting books or the company office have jurisdiction to try the claim. A lawyer and procurator must be involved.

Notice of general meeting (articles 117 to 119)

Notice of a general meeting may be carried out through the voluntary process and by fulfilling the Companies Act rules (art. 166 and following).
The commercial court where the company is domiciled has jurisdiction to try the claim. Again, a lawyer and procurator must be involved.
The procedure starts by filing a letter asking for notice of the general meeting. Such a letter must fulfil the legal requirements. Once the letter is admitted, a date for the hearing will be fixed by the legal secretary, where the attendance of the board of directors is required.
If the notice is accepted, a general meeting will be held within a month of the date of the submission of the letter.

The appointment of liquidator or auditor (articles 120 to 123)

The commercial court where the company is domiciled has jurisdiction to try the claim. A lawyer and procurator must be involved. The legitimacy of any appointment is established by law (art. 371 and following of the Companies Act).
The procedure starts by filing a letter requesting the appointment of a liquidator or auditor. Such a letter must fulfil the legal requirements. Once the letter is admitted, a date for the hearing will be fixed by the legal secretary, where the attendance of the board of directors will be required.
The liquidator will be informed of the appointment in order to take the position. Additionally, said appointment will be registered at the commercial registry.

The reduction in the company’s capital (article 124)

By fulfilling the Companies Act rules (art. 317 and following), the claimant would be entitled to ask for a reduction in the company’s capital. The commercial court where the company is domiciled has jurisdiction to try the claim.

The liquidation of the companies (article 125 to 128)

The voluntary process may take place in cases established by law for the liquidation of the company (art. 360 and following of the Companies Act). As set forth in the prior articles, a lawyer and procurator must be involved and the commercial court where the company is domiciled has jurisdiction to try the claim. The board of directors, the shareholders and any other interested party is entitled to file the claim.
Once the legal requirements are fulfilled, the claim will be served on the board of directors, provided they have not initiated the process, and a date for the hearing will be fixed.
If the claim is admitted, the court will appoint the liquidators to dissolve the company, which will be registered at the commercial registry. 

 Notice of the general assemblies of debt holders (article 129 to
131)

As in the prior cases, the commercial court where the company is domiciled has jurisdiction to try the claim and a lawyer and procurator must be involved. Once the legal requirements are fulfilled, a hearing will take place. The attendance of a commissioner appointed to the issue and the shareholders who initiated the assembly would be required.
If the claim is admitted, the court will require the parties to attend the assembly in order to facilitate a union of the debtors within a month of the date of the submission of the letter.