SPECIAL ISSUE PREVENTIVE RESTRUCTURING 11. The Swedish Implementation of the EU Directive on Preventive Restructuring: Fewer but More Successful Restructurings?

1. Introduction^[1]

The Directive on Preventive Restructuring (PRD 2019)^[2] was implemented in Sweden by enacting the new Law on Company Restructuring (new FrekL).^[3] It replaced the first Swedish law on restructuring (old FrekL), which stemmed from 1996.^[4] The old FrekL was heavily criticised for, among other things, lacking the proper legal tools for restructuring.^[5] Its most prominent feature was the judicial composition (terms such as accord and concordato are sometimes used to describe this legal tool).^[6] The judicial composition enabled the debtor to reduce the creditor’s unsecured claims without the ownership of the debtor being affected. Thereby, a judicial composition favoured owners over unsecured creditors.^[7] As many as 60% of the attempts at restructuring failed under the old framework; it was simply insufficient.^[8]

The legislator’s intention is not, predominantly, that the new FrekL will be used more than the old framework, but rather that the new framework will enable a higher success rate. To achieve this goal, the new FrekL contains an improved feasibility test, hopefully enabling courts to sort out those companies that can be restructured successfully. The new FrekL also includes new legal tools for restructuring, such as more comprehensive and debtor-friendly rules on executory contracts and the possibility of restructuring via a plan that includes owners.^[9]

In this article, the Swedish implementation will be analysed. We will look into the objective and scope of the framework, the standards for commencing the new FrekL, rules on the involved actors, the stay, the plan, executory contracts and, finally, some questions regarding jurisdiction and recognition.

2. Overview of the Swedish Pre-Reform Restructuring and Insolvency Law Regime

In Sweden, we had two formal insolvency frameworks before implementing the PRD 2019: the Bankruptcy Law^[10] and the old FrekL. Both could be and were used to restructure businesses. In addition, informal workouts are common, and a discharge framework is available for insolvent entrepreneurs.^[11]

Our present Bankruptcy Law was enacted in 1987. However, several partial reforms were carried out during the seventies and the eighties, which were kept in place in 1987. These reforms were the fruit of a collaboration among the Nordic countries. Therefore, many aspects of substantive bankruptcy law have significant similarities, especially in Sweden, Denmark and Norway.^[12]

The Bankruptcy Law entails a liquidation procedure, and it is aimed at the best interest of the creditors.^[13] Following the issue of a bankruptcy decision, a debtor is not in charge of property belonging to the insolvency estate (the debtor is not in possession during the procedure).^[14] Instead, it is the insolvency practitioner who sells and transfers the debtor’s assets.^[15] The assets can be sold as a going concern if that leads to the most beneficial winding-up of the estate – resulting in a restructuring of sorts. However, it is the assets as such (including, where relevant, the company´s subsidiaries) of the bankrupt company that will be sold. The legal entity cannot be restructured through this bankruptcy framework; a company shall either be deemed dissolved upon the conclusion of the bankruptcy proceedings or be liquidated.^[16] Furthermore, the estate cannot assign the debtor’s contracts, which, in some cases, can hinder these kinds of restructurings.^[17]

As a starting point, the proceeds from the insolvency estate are distributed among the creditors according to the pari passu principle.^[18] However, there are many ways of receiving priority, which leads to unsecured creditors seldom receiving dividends exceeding ten per cent of their claims.^[19] In cases of natural persons, a bankruptcy procedure does not result in a discharge of debt. Although, there is a separate framework that enables the discharge of natural persons.^[20]

The Bankruptcy Law is also used for another type of restructuring, which can best be described as an unregulated pre-pack. In this approach, a going concern sale is agreed upon before the commencement of the bankruptcy proceedings. Still, the approval of an insolvency practitioner is a condition for the sale to take place. Otherwise, the transaction avoidance rules may overthrow the approach. In some cases, the buyer is the person who owned the legal entity declared bankrupt. The arrangement allows the owner to get rid of debt and unwanted contracts in exchange for paying the market value for the assets. In this way, the business is restructured financially; however, since this is an unregulated pre-pack, there are issues with a lack of transparency and safeguards for the creditors.^[21]

As an addition to the Bankruptcy Law, it has been possible to negotiate a judicial composition without bankruptcy since 1921, as mentioned in the introduction.^[22] However, the bank crisis in Sweden at the beginning of the nineties gave rise to a high number of bankruptcies, which by many was considered an unnecessary loss of economic value. The government’s response was to enact a new law on company restructuring (the old FrekL), which provided a framework for restructuring. In this framework, a restructuring officer was appointed who took control of the company and would explore the possibility of a judicial composition of unsecured debt. New financing was granted with super priority, and there was a stay, but only partially with regard to an acceleration of contracts.^[23]

However, the framework lacked some fundamental restructuring tools:

• The framework lacked sufficient safeguards against debtors using the framework to put off an inevitable bankruptcy.
• The framework lacked efficient rules on executory contracts.
• Only the unsecured creditors were affected by the judicial composition.

Academics and practitioners heavily criticised the restructuring procedure for not being effective enough.^[24] The statistics supported this. Less than 3% of the formal insolvency proceedings were restructurings, and as many as 60% of these restructurings failed in the sense that the company was wound up after five years.^[25]

3. The Implementation of the PRD 2019: The New FrekL

Practitioners and academics welcomed the reforms needed to implement the PRD 2019. Before the PRD 2019, several official reform proposals were put forward to the Swedish Department of Justice regarding the law on company restructuring.^[26]

However, these initiatives came to a halt at the Department. Non-official efforts were also taken to encourage the Department of Justice to reform the law. The Nordic-Baltic Insolvency Network delivered the most elaborate proposition. The network consisted of academics, and expert legal practitioners from the entire region. In 2016, the network published its recommendations for a harmonised insolvency law.^[27] However, once again, the interest from the Department of Justice to reform insolvency law was tepid. Therefore, not surprisingly, practitioners and academics welcomed the PRD 2019 because it meant the Department of Justice had to act.

The Swedish implementation followed the same procedure that applies to every implementation of an EU directive. The Department of Justice appointed an inquiry chair in September 2019. She was tasked with analysing which amendments that were necessary or otherwise appropriate so as to implement the directive in Swedish law. This chair received the assistance of a group of experts which consisted of practitioners, academics and representatives of various public authorities. In March 2021, the chair delivered her official report of 848 pages on how to implement the PRD 2019.^[28] The report was sent for consultation to relevant public authorities, organisations, universities, other stakeholders and the Swedish Council on Legislation. Based on the report and considering the views of the various stakeholders, the government drafted a bill, which was published in April 2022 and passed by the Swedish parliament in June 2022. Finally, the new FrekL came into force on the 1st of August 2022.

Even though the implementation formally followed the standard procedure, it received an unusual amount of attention from various stakeholders. The Nordic-Baltic Insolvency Network’s recommendations, which were published prior to the implementation process, have already been mentioned. Furthermore, the Insolvensrättsligt forum – a foundation with the purpose of supporting debate and research on Swedish Insolvency law – arranged a hearing with 40 of the most prominent Swedish practitioners and academics in the field. The hearing resulted in recommendations on how Sweden should implement the PRD 2019.^[29] In the official report on implementing the PRD 2019, the network and Insolvensrättsligt forum’s recommendations were extensively referenced. Altogether, the engagement of various stakeholders in the implementation process has been strong.

4. Main features introduced by the reform

4.1. Objective, scope and duration of the framework

As mentioned above, the new FrekL came into force in August 2022, and it contains a framework for restructuring. The old FrekL was abolished at the same time. However, the primary aim of the new FrekL remains the same: To ensure that viable businesses in financial difficulty can be restructured so that they can avoid bankruptcy.^[30]

The new FrekL is available to debtors that engage in commercial activities, i.e. non-consumers.^[31] The debtor can be either a natural person or a legal entity.^[32] Exemptions in line with article 2 of the PRD 2019 are also made: Insurance undertakings, credit institutions, and public bodies are, for example, not possible to restructure within the framework.^[33] No special considerations for debtors that are part of an enterprise group were made. Instead, the new FrekL takes an entity-by-entity approach.

As to duration, the court shall order that the restructuring shall terminate when three months have passed from the commencement of the proceedings.^[34] However, as the law prescribes, the court may decide that the proceedings are prolonged by three months if there are special circumstances at hand.^[35] Nevertheless, if progress has been made and the prognosis is good, a prolongation should typically be given.^[36] Generally, it is expected that the proceedings will take more than three months. One of the first restructuring cases, in the new FrekL framework, took four months from its commencement to its successful completion.^[37] The longer the proceedings have been going on, the higher the requirements are for prolongation.^[38] The proceedings may not last longer than a total of twelve months unless the court has previously decided on a plan negotiation. In that case, the proceedings must end no later than fifteen months after the commencement of the proceedings.^[39]

4.2. The Standards for Commencing the New FrekL

Both the debtor and the creditors can apply for the FrekL proceedings to commence. The application is handed to the district court, which decides on the matter. The formalities and the procedure differ depending on if the debtor or a creditor applies. The debtor’s application should, among other things, contain an account of why the commencement standards are fulfilled, a list of the debtor’s creditors, a suggestion for a practitioner in the field of restructuring (PIFOR), and a list of creditors who have been contacted in advance and their view on the proposed PIFOR.^[40] If the debtor is a limited liability company, the board of directors does not require the approval of the shareholders’ meeting to apply for the procedure.^[41] If the debtor’s application is in line with the formalities, the court shall immediately examine it.^[42]

If a creditor applies, the application should also include an account of why the commencement standards are fulfilled, a suggestion for PIFOR, and a list of creditors who have been contacted in advance and their view on the proposed PIFOR.^[43] In addition, the creditor must also give information regarding the claim on the debtor.^[44] There are no requirements regarding the size of the claim, and the claim does not have to be due.^[45] If the creditor’s application is in line with the formalities, the court shall, within two weeks, hold a court session, where the debtor and the creditor must be present. At the meeting, the court shall examine the application. If the debtor disputes the application, it expires. Accordingly, an application for restructuring submitted by a creditor may be granted only if the debtor has consented to the application.^[46]

Regarding the standards for the commencement, there was a vivid and lengthy discussion concerning the old FrekL. The discussion springs from the fact that as many as 60% of the commenced proceedings failed.^[47] Many concluded that, in general, debtors applied too late for restructuring, which meant that the financial difficulties were too severe for the restructuring to succeed.^[48] In the new FrekL, these considerations have been taken into account; the legislator has striven to prevent hopeless attempts to restructure and give incentives for earlier applications.^[49]

The standards for the commencement of the new FrekL are two-fold: The debtor must have certain financial problems, and the debtor must pass a feasibility test. Concerning the severity of the financial problems, there are three alternative standards. The restructuring can be commenced if:

• The debtor cannot pay its debts when due;
• Such financial problems are expected to arise in the short term; or
• The debtor in any other respect has financial difficulties, which entail a risk of insolvency.

The concept of insolvency in the Swedish context means that the debtor cannot pay her, his or its debts when due, and that this incapacity is not merely temporary. The latter means that the concept of insolvency includes a prognosis of the debtor’s financial problems.^[50] Since insolvency is also included regarding the commencement standards for restructuring, a prognosis must be made concerning the third standard. The threshold for such a risk is set low. The legislator wanted to send an important signal that restructuring is available at an early stage for companies with financial problems.^[51] And as mentioned above, the district court makes the assessment of the debtor’s financial problems meet any of these standards.

Furthermore, the Swedish legislator implemented the feasibility test from art. 4(3) PRD 2019 with the intent to prevent hopeless attempts to restructure.^[52] In the old FrekL, there was a feasibility test. However, it was sufficient that the debtor proposed a plan for the proceedings that did not lack realism.^[53] The viability test in the new FrekL has a higher threshold. The proceedings can only commence if there is good reason to assume that the viability of the business can be secured through the proceedings.^[54] The test regards both that the proceedings succeed in itself and that the debtor’s business can be secured.^[55] The burden of proof lies with the debtor in this case, and, as mentioned above, the court decides if the test is fulfilled. The court will probably look at the adequacy of capital structure, the earning power of the debtor’s business and the ability to finance the proceedings when assessing the feasibility test.^[56]

It should also be noted that the feasibility test will be carried out repeatedly during the proceedings.^[57] For example, if the proceedings are commenced, a meeting of creditors must be arranged within three weeks.^[58] The court holds the meeting, and the creditors must be heard about the question of whether or not the proceedings shall continue.^[59] If the court finds that the feasibility test is not being met at this moment in time, the court must decide that the proceedings shall end.^[60] The court also has the competence to carry out the test ex-officio throughout the proceedings, and every time the court examines if the proceedings shall be prolonged, the test shall also be conducted by the court.^[61]

Finally, restructuring cannot be commenced if the debtor’s accounting records are so deficient or defective that it is not possible to assess the course of the business activities, financial results, or financial position in general.^[62]

4.3. Involved actors

The new FrekL is a debtor-in-possession framework of sorts. However, a PIFOR is always appointed and, along with the court and the creditors, the PIFOR has considerable influence over the proceedings and the debtor’s assets. Furthermore, equity holders are considered to be affected parties, and are, therefore, included in the plan process. See below under section 4.5.

4.3.1. Debtor in Possession of Sorts

As a main rule, the debtor retains the right of disposition. However, the debtor is not allowed to pay debts or fulfil other obligations that arose before the commencement of the proceedings nor provide security for such obligations without the consent of the PIFOR. Furthermore, without consent of the PIFOR, the debtor can neither dispose of assets of significant importance nor incur new obligations outside the ordinary course of business.^[63] The concept of the ordinary course of business is also used to determine the CEO’s competence under the Companies Act.^[64]

Moreover, the debtor must provide all information to the PIFOR about the debtor’s financial circumstances that are important for the restructuring. The debtor must also follow the PIFOR’s instructions on how the business is to be conducted.^[65] However, there are no specific legal sanctions tied to this general obligation.^[66] Although the PIFOR has a general right to demand that the court terminates the restructuring procedure.^[67]

4.3.2. PIFOR

When the proceedings commence, the court shall appoint a PIFOR.^[68] The PIFOR must meet the same requirements as an Insolvency practitioner (IP) in bankruptcy, meaning that only specialised insolvency lawyers will be considered.^[69] The PIFOR must also have the creditors’ trust in the individual case. Furthermore, the PIFOR should also have experience of continuing to operate a business on behalf of a bankruptcy estate or has other comparable experiences.^[70] This is a higher requirement than the one in PRD 2019 and the old FrekL.^[71] According to the old FrekL, appointing non-IP:s to the PIFOR role was possible. However, their restructuring success rate was significantly lower compared to IP’s.^[72] The higher requirements are intended to come to terms with this problem.^[73]

4.3.3. The Court

The court determines a great deal of the fundamental matters concerning the proceedings: It decides if the proceedings shall commence,^[74] if formal negotiations on a restructuring plan shall commence,^[75] the court confirms the plan (which is necessary for the plan to have a binding effect),^[76] and the court decides if the proceedings shall expire.^[77] To make these decisions, the court must be able to read and understand, among other things, balance sheets, income and cash flow statements. There has been a vivid discussion regarding whether the judges have these competencies.^[78]

Presently, an application to commence a restructuring procedure is to be handed into the debtor’s local district court. The government has the authority to limit the number of district courts that handle these procedures but has not yet taken any action. In sparsely populated Sweden, there are 48 of these courts, and the judges are mainly experts in criminal and family law matters. Previously, we have had around 200 restructurings per year, which makes it hard for many of the smaller courts to develop competence in these areas of law. For Sweden to fulfil article 25 of the PRD 2019, which requires that member states ensure that judicial authorities receive suitable training and have the necessary expertise for their responsibilities, it would be appropriate to considerably limit the number of courts.

4.3.4. Other actors

As in any restructuring, the creditors have a vital role to play. It has already been mentioned that the creditors shall be heard at the initial creditor’s meeting regarding whether the procedure shall continue. The creditors are also vital with regard to the plan. Furthermore, a creditor’s committee shall be appointed if any creditor demands it. The committee shall include an employee representative if the debtor has 25 employees or more. The PIFOR shall, as a main rule, allow the committee to be heard on substantial matters.^[79] Moreover, the new FrekL does not in itself affect individual and collective workers’ rights under Union and national labour law; the ordinary rules for layoffs and transfer of undertakings apply.^[80]

The Enforcement Agency is the regulatory authority for restructurings. It supervises the PIFOR:s and shall be heard before, amongst other things, the appointment and, if relevant, separation from the PIFOR assignment.

4.4. Stay

The new FrekL provides the debtor with a general stay of individual enforcement actions in accordance with art. 7 PRD 2019, including a suspension of the opening of a bankruptcy procedure if the debtor demands it.^[81] The stay applies during the restructuring procedure.^[82] However, there is a maximum set of one year, starting from the commencement of the proceedings, for the stay.^[83] There are some exceptions from the stay: Claims for which the creditor holds a chattel mortgage or right of retention, where it is unlikely that the company restructuring will thereby be jeopardised, or where the impact on the creditor would otherwise be unreasonably burdensome are excluded from the scope of the stay. Workers’ claims and claims for alimony are also excepted from the stay.^[84] Furthermore, if there are special reasons to assume that the creditor’s rights are seriously at risk, there are also exceptions from the stay.^[85] The Swedish legislator did not derogate from art. 7 (3) PRD 2019 and its rules on the stay in situations where a debtor cannot pay its debts as they fall due. The stay also has implications for executory contracts. See further below under section 4.8.

4.5. The plan

Before implementing the PRD 2019, the main tool for restructuring was the judicial composition.^[86] Therefore, the new rules on restructuring plans brought major changes to Swedish restructuring law. The debtor or the PIFOR can demand that the court decides that negotiations on a restructuring plan shall take place. The plan framework can, thus, be described as a framework within the framework.^[87]

4.5.1. Scope of a Plan

The plan shall include the necessary measures to deal with the debtor’s financial difficulties and ensure that the debtor or somebody else can continue the debtor’s business or parts thereof.^[88] This means the plan cannot be a pure liquidation plan of the debtor’s business. Furthermore, the essential is that the business, rather than, for example, the company, is restructured, as prescribed in art. 2.1.1 PRD 2019.

In the negotiations on a restructuring plan, every affected party is included. Creditors whose claims have arisen prior to the commencement of the proceedings are seen as affected parties if their claims are directly affected by a restructuring plan, regardless of whether their claims are secured or not.^[89] If a creditor’s claim is included in a judicial composition, the creditor is, obviously, an affected party. Even minor changes in the payment terms are also sufficient for the creditor to be considered an affected party. For example, it is adequate that the payment period is postponed or the conditions for payment are changed in any way for the creditor to be considered an affected party.^[90]

Furthermore, equity holders can also be affected parties if their interests are directly affected by a plan. Including equity holders is a significant shift compared to the old FrekL. The consequence of the judicial composition in the old FrekL was a haircut for the unsecured creditors, even though the owners’ interests remained intact. As mentioned above, the old FrekL was heavily criticised for this reversed waterfall compared to bankruptcy.^[91]

4.5.2. Measures

In principle, there are no limits to the measures that can be proposed in the plan; every measure that the affected parties dispose of and can enter into a contract regarding can be included in the plan. The legislator did not want to limit the means of restructuring. However, formalities prescribed by other laws and compulsory rights, such as certain workers’ rights, cannot be overrun with a plan. Furthermore, an affected party cannot be obliged to carry out a new obligation with a plan. For example, an owner of the debtor cannot be forced to make a shareholder contribution. However, it is possible to include non-affected parties in the plan. If a non-affected party needs to consent to a measure, the plan must be conditioned by the approval of the same party.^[92]

Previously, as a main rule, the judicial composition had to provide at least 25% of the amount of the claim, and the dividend had to be paid within a year.^[93] The new FrekL does not include any such formal rules. Nevertheless, if the debtor’s intention, already when applying for restructuring, is to provide a lower dividend than said percentage, it is a factor that can be considered in the viability test, indicating that the debtor fails the test.^[94]

The plan can also include changes in management. Although changes in the board of directors must be approved at a shareholders’ meeting, the plan can be conditioned by the approval of the meeting.^[95] In line with art. 2.1.1 PRD 2019, the plan can include measures that change the debtor’s capital structure. If the plan increases or decreases the share capital, a plan confirmation shall have the same binding effect as a decision at a shareholder’s meeting.^[96]

4.5.3. New and Interim Financing

In the old FrekL, every claim that stemmed from a contract agreed upon with the consent of a PIFOR received a general right of priority; it was not limited to new credit or to a certain time period.^[97] To give some context, a right of priority to payment may be specific or general in Sweden. Specific priority applies in the event of execution of a debt or bankruptcy and relates to a specific property. General priority only applies in the event of bankruptcy and relates to all of the property in the debtor’s estate. In the old FrekL, the protection for claims that stemmed from new contracts was too generous, according to many practitioners and academics in Sweden.^[98]

In the new FrekL, the conditions under which new financing and interim financing receive priority are more balanced compared to the old FrekL. Claims based on agreements entered into by the debtor with the PIFOR’s consent have a general right of priority.^[99] However, such right of priority ceases to apply if a restructuring plan has been confirmed or three months after the proceedings have ended without plan confirmation, provided no petition for bankruptcy relating to the debtor has been filed within that time.^[100] The new FrekL, thus, enables interim financing to have priority. Even though the priority is not limited to interim credit, the time limit is an improvement compared to the old FrekL.^[101] However, it is likely that most creditors will demand the PIFOR’s consent to achieve priority.^[102]

Furthermore, new financing can also receive a general right of priority. In these cases, the new financing must be included in a confirmed restructuring plan, and the credit must also be necessary to carry out the plan.^[103] It is up to the parties to decide to what extent a general right of priority should apply, and if the priority should be limited in time.^[104] The legislator’s intent is to provide flexibility to the parties to decide if priority is needed.^[105]

4.5.4. Classes

Concerning class formation, there are mandatory classes within the new FrekL framework. The affected parties shall be divided into the following classes:

• Creditors who are senior to the ordinary unsecured creditors;
• Unsecured creditors;
• Creditors with claims under public law (e.g. public authorities, municipalities), if the claim is not as referred to in 1 or 4;
• Creditors whose claims rank below the claims of ordinary unsecured creditors in the normal ranking of bankruptcy priorities; and
• Equity holders.^[106]

In accordance with art. 9.4 PRD 2019, the Swedish legislator’s intention was that the affected parties would be treated in separate classes that reflect a sufficient equivalence of interest. Above all, these mandatory classes reflect the affected parties’ priority in bankruptcy. Nevertheless, it is possible to create additional classes if it is justified on the basis that the affected parties have a sufficient equivalence of interest. In the preparatory works (in other terms legal history or travaux préparatoires), it is mentioned that business partners with unsecured claims can be put into a class of their own. However, it is not possible to create additional classes and, within such a class, bring together, for example, unsecured and secured claims; any additional classes must respect the boundaries of the mandatory classes. Moreover, a creditor can be included in two classes. For instance, if the value of a security only partially covers the amount of the relevant claim. In that case, the creditor must be included in the class of the secured creditors as well as the class of the unsecured creditors. It should also be noted that Sweden has not used the option in art. 9.4 PRD to create a separate mandatory class for workers’ claims.^[107]

4.5.5. Information

According to the new FrekL, the plan shall also provide information regarding, among other things, assets and liabilities at the time of submission of the restructuring plan. The new FrekL corresponds to article 8 PRD 2019 regarding what information should be provided. However, the information is provided by different actors. The plan itself shall, for example, include information about the affected parties and their claims or interests, the classes into which the affected parties have been allocated and the reasons for the class formation, creditors and owners who are not affected by the plan and a statement why they should not be affected, overall consequences as regards to employment, restructuring measures, and information on new financing.^[108]

To the plan, a statement by the PIFOR must be attached. The statement shall, for example, provide information regarding the economic state of the debtor, the dividend that can be expected in a bankruptcy, if there are reasonable grounds to assume that the debtor has committed a crime against his or her creditors and, if so, the grounds for this, and the view of the PIFOR on whether or not he or she is of the opinion that the affected parties shall adopt the plan and if the plan has reasonable prospects of securing the viability of the business and preventing insolvency.^[109]

4.6. Adoption and Confirmation of the Plan

Within the formal negotiations regarding a restructuring plan, the plan can be adopted and confirmed (the proceedings within the proceedings, as stated above). The PIFOR, the debtor, and the affected parties can raise objections against the choice of affected parties and class formation.^[110] Regardless of any objections, the court still assesses the choice of affected parties and class formation ex-officio, and the court can make necessary adjustments in the plan regarding these aspects.^[111] After that, the affected parties vote on the adoption of the restructuring plan.^[112] The plan is adopted, if, within every class, at least two-thirds of those voting and their claims or interests amount to at least two-thirds of the claims or interests for which voting rights may be exercised.^[113]

If a plan is adopted, the court shall verify if the plan can be confirmed.^[114] Several conditions need to be met in accordance with art. 10(2) PRD 2019. Some of them the court shall examine ex-officio and some after objection from an affected party. The court must examine if:

• Affected parties in the same class are treated equally and in a manner proportionate to their claim or interest;
• The plan has reasonable prospects of preventing the debtor from becoming insolvent or securing the viability of the business;
• There is reasonable cause to believe that the debtor has surreptitiously favoured any affected party for the purpose of influencing the plan negotiation or that any other deceit has occurred in connection with the plan negotiation;
• The plan contravenes the law or other ordinance or is clearly detrimental to the parties concerned; or
• The case has not been handled in the prescribed manner, and the error may have affected the outcome of the planning negotiation.

Furthermore, if the restructuring plan provides for new financing, the plan can only be confirmed if the new financing is necessary to implement the plan and does not unfairly prejudice the interests of creditors.^[115] If an affected party objects, the court shall also examine if the restructuring plan satisfies a best-interest-of-creditors test.^[116] In the new FrekL the test means that the court shall examine if the economic value the affected party receives according to the plan is less than the economic value the party would have received in the case of bankruptcy. The Swedish legislator chose this threshold since it considered other next-best-alternative scenarios hard to assess.^[117] In addition, the court may, upon objection by an affected party, refuses to determine the restructuring plan if it is in any other way detrimental to the affected party, there is no adequate security for the fulfilment of the plan, or if there is another special reason not to determine the plan.^[118]

In accordance with art. 11 PRD 2019, a cross-class cram-down is possible within the new FrekL. The debtor, the PIFOR, or an affected party can propose a cram-down.^[119] The consent of the debtor is required if the debtor is an SME, and the plan must meet the ordinary requirements for confirmation.^[120] In addition, the plan needs to be approved by a majority of the voting classes of the affected parties, provided that at least one of those classes is senior to the ordinary unsecured creditors class or at least two of the voting classes of affected parties would receive payment or keep any interest in the case of bankruptcy.^[121] The plan must also meet the requirements according to art. 11 (1c–d). Hence, voting classes of affected creditors must be treated at least as favourably as any other class of the same rank and more favourably than any junior class.^[122] Furthermore, under the restructuring plan, no class of affected parties can receive or keep more than the full amount of their claims or interests.^[123] Last but not least, the Swedish legislator chose to implement the absolute priority rule (APR); the dissenting voting class must be satisfied in full by the same or equivalent means where a more junior class is to receive any payment or keep any interest under the restructuring plan if the plan should be cram-downed.^[124] However, the legislator also chose to implement an exception in accordance with art. 11 (2) subpara. 2. The legislator’s intention is that, in some cases, owners can keep their ownership even though creditors are not paid in full. However, only if it is necessary to achieve the aims of the restructuring plan and where the plan does not unfairly prejudice the rights or interests of any affected parties.^[125]

The possibility of circumventing the APR rule in the new FrekL has been discussed in the literature. Circumvention would be possible through a plan which would leave the owners unaffected and, therefore, regarded as non-affected parties regarding class formation. The question has been raised if such a plan can be cross-class cram-downed, or if the APR hinders such a cram-down. In the Swedish literature, the conclusion has been drawn that it is not possible with a cram-down in these situations because such an interpretation would conflict with the preparatory works and the purpose of the mentioned exception from the APR rule.^[126]

4.7. Possibilities for a Debt-for-Equity Swap

As stated above, equity holders can be considered affected parties within the new FrekL framework if they are directly affected by a restructuring plan. Furthermore, for a cross-class cram-down to be carried out, the plan must include equity holders as a main rule. The plan can include a debt-for-equity swap. It can be done by increasing the debtor’s share capital. In these cases, the right of pre-emption of shareholders can be overridden. The debt-for-equity swap can also be done by swapping debt for existing shares. Moreover, decreasing the debtor’s share capital is also possible via the plan. These are all novel tools to restructure a business in Sweden.^[127]

4.8. Executory Contracts

Prior to implementing the PRD 2019, Sweden lacked general rules on executory contracts in both the old FrekL and the Bankruptcy Law. For example, it was disputed if an ipso-facto clause had an effect.^[128] This was one of the significant shortcomings of Swedish insolvency law. In contrast, the new FrekL has general rules on executory contracts. The rules are not just applicable to essential contracts, as art. 7(4) PRD requires. However, employment contracts are excluded.^[129] The same goes for some financial instruments.^[130] In her official report on how to implement the PRD, the inquiry chair also proposed general rules on executory contracts in bankruptcy (consisting of a ban on ipso-facto clauses). However, the proposal was removed from the bill.^[131]

In the new FrekL framework, the debtor is given several far-reaching rights regarding executory contracts:

• When the application restructuring has been made, a counterparty to a contract with the debtor may not terminate the contract due to a delay in payment or any other performance if the delay occurred or was to occur before the decision to commence the restructuring.^[132]
• The debtor can choose to continue a contract. In some cases, the PIFOR’s consent is needed. Partial continuance for a period of time or amount is also possible if it is not of significant inconvenience to the other party.^[133]
• The debtor can terminate contracts.^[134]

Contract terms that deviate from these rights have no legal effect. Furthermore, ipso-facto clauses which give the debtor’s counterparty the right to withhold its performance, cancel the agreement or otherwise change the agreement to the debtor’s disadvantage due to the application or the decision on restructuring or plan negotiation or the financial difficulties of the debtor that formed the basis for the application for restructuring has no legal effect.^[135]

4.9. Jurisdiction for and Recognition of Court Decisions in Europe

The old FrekL was listed in annex A of the EIR 2015. Since the new FrekL supersedes the old FrekL, the legislator kept the list of Swedish frameworks the same. The new FrekL, which has the same title as the old one, is in that manner listed in the annex A. As a result, the legal basis for assuming jurisdiction and recognition of court decisions in cross-border cases in the EU is the EIR 2015.

5. Conclusion

The PRD 2019 was welcomed by practitioners and academics in Sweden as it compelled the legislator to reform the old FrekL – a reform that was much needed. The statistics showed that as many as 60% of the restructurings within the old framework failed. This outcome was probably due to the fact that the old FrekL was seen as a last resort. In many cases, commencing a procedure within the old FrekL only postponed the inevitable bankruptcy to the detriment of the creditors. For example, the Swedish car manufacturer Saab Automobile’s debts grew by a breath-taking 10 billion SEK from when the company began its first restructuring in 2009 via its second attempt at restructuring in 2011 until it was finally declared bankrupt in 2011.^[136] Hopefully, the improved feasibility test will result in only those companies that can be restructured gaining access to the framework. At least, that is the legislator’s intention.

The new FrekL has also provided several new tools for restructuring, such as more comprehensive and debtor-friendly rules on executory contracts and the possibility of restructuring via a plan that includes the equity holders. It is now up to the practitioners to learn how to utilize these tools effectively. We have yet to see the results of the reforms since it is still early doors. Practitioners are concerned that judges may lack the competence and experience to decide on these cases. A reduction in the number of courts with jurisdiction in these cases would be advisable, especially considering that the Member States shall ensure that the judicial authorities receive suitable training and have the necessary expertise for their responsibilities according to art. 25 PRD 2019.

Another concern is that the new FrekL might be too costly for the many SMEs in Sweden.^[137] If that is the case, the use of the Bankruptcy Law as a way to restructure will continue. When the Bankruptcy Law is used for unregulated pre-packs, it leads to transparency problems and a lack of safeguards for the creditors. Since it is likely that the Swedish legislator won’t take any own initiatives in the field of insolvency law, it is welcome that the EU Commission keep up its work in the field. A directive on pre-packs would be much welcomed in Sweden. Just as the PRD 2019 was.

^[1] The article covers the law, case law and literature as of 1 August 2023.

^[2] Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132, O.J. L 172/18.

^[3] In Swe: lag (2022:964) om företagsrekonstruktion. A translation of the law to English can be found at juno.nj.se (paywall).

^[4] In Swe: lag (1996:764) om företagsrekonstruktion.

^[5] See the referred discussion at Insolvensrättsligt forum 1999, in: T. Håstad (ed.), Insolvensrättsligt forum 1999, Iustus förlag: Uppsala, 2000, p. 13-58 and at Insolvensrättsligt forum 2009, in: M. Möller (ed.), Insolvensrättsligt forum 2009, Iustus förlag: Uppsala, 2014, p. 97-109. See also A. Persson & M. Karlsson-Tuula, Företagsrekonstruktion i teori och praktik, 3rd ed., Wolters Kluwer: Stockholm, 2017, p. 181-184; M. Ehrenpil, Rekonstruktionsuppgörelsen, Om maktutövning och intresseförhållanden vid rekonstruktion av aktiebolag, Iustus förlag: Uppsala, 2023, p. 100-104.

^[6] In Swe: offentligt ackord. See Madaus, Stephan, Leaving the Shadows of US Bankruptcy Law: A Proposal to Divide the Realms of Insolvency and Restructuring Law, European Business Organization Law Review 2018, p. 627.

^[7] 3 chap. old FrekL.

^[8] See SOU [Swedish Government Official Reports] 2021:12, Andra chans för krisande företag – En ny lag om företagsrekonstruktion, p. 177-181, for more details on the statistics.

^[9] See SOU 2021:12, Andra chans för krisande företag – En ny lag om företagsrekonstruktion, p. 34-37.

^[10] In Swe: konkurslag (1987:672).

^[11] Discharge can be received in accordance with the Discharge of Entrepreneurs Law, in Swe: lag (2016:676) om skuldsanering för företagare.

^[12] See for example SOU 1970:75, Utsökningsrätt X, Konkursgrunderna, gäldenärens legitimation, återvinning,

kvittning, solidariska skuldförhållanden m.m., p. 3 (Sweden); Bet [government bill] 1971:606, konkurs og tvangsakkord, p. 5-6 (Denmark); NOU [Norwegian Government Official Reports] 1972:20, Gjeldsforhandling og konkurs, p. 2 (Norway), about these collaborations.

^[13] See for example 7 chap. 8 § Bankruptcy Law.

^[14] 3 chap. 1 § Bankruptcy Law.

^[15] 1 chap. 1 §, 7 chap. 8 § and 8 chap. Bankruptcy Law.

^[16] 25 chap. 50-51 §§ Companies Act. In Swe: aktiebolagslag (2005:551).

[17] The Bankruptcy Law lacks rules on executory contracts. Even though reforms have been put forward by several inquiry chairs, see for example SOU 2001:80, Gäldenärens avtal vid insolvensförfaranden; SOU 2010:2, Ett samlat insolvensförfarande – förslag till ny lag; SOU 2016:72, Entreprenörskap i det tjugoförsta århundradet, but the Department of Justice has not acted upon these suggestions for reforms.

^[18] 18 § Rights of Priority Act, in Swe: förmånsrättslag (1970:979).

^[19] The many ways come to expression in inter alia the Rights of Priority Act.

^[20] See footnote 11 above. Discharge can also be received for non-entrepreneurs in accordance with the Discharge law. In Swe: skuldsaneringslag (2016:675).

^[21] See proposition [government bill] 1995/96:5, Lag om företagsrekonstruktion, p. 53-57; SOU 2010:2, Ett samlat insolvensförfarande – förslag till ny lag, del 1, p. 46 and p. 89-92; E. Danhard, Konkursarbetsrätt, Om arbetsrätt och lönefordringar i konkurs och företagsrekonstruktion, 6th ed., Jure: Stockholm, 2018, p. 158-159; M. Mellqvist & L. Welamson, Konkurs och annan insolvensrätt, 13th ed., Norstedts juridik: Stockholm, 2022, p. 316.

^[22] See I. Arnesdotter, Om betalningsinställelse och offentligt ackord, Norstedts juridik: Stockholm, 1982, p. 39-42; M. Ehrenpil, Rekonstruktionsuppgörelsen, Om maktutövning och intresseförhållanden vid rekonstruktion av aktiebolag, Iustus förlag: Uppsala, 2023, p. 82-105, for the history of the composition laws and their use.

^[23] See for example L.-E. Gustafsson, Företagsrekonstruktion och ackord, Norstedts juridik: Stockholm, 2014, passim; M. Mellqvist & L. Welamson, Konkurs och annan insolvensrätt, 12th ed., Wolters Kluwer: Stockholm, 2017, p. 294-321; A. Persson & M. Karlsson-Tuula, Företagsrekonstruktion i teori och praktik, 3rd ed., Wolters Kluwer: Stockholm, 2017, passim.

^[24] See above in footnote 5.

^[25] See SOU 2021:12, Andra chans för krisande företag – En ny lag om företagsrekonstruktion, p. 177-181, for more details on the statistics.

^[26] See in footnote 8 above.

^[27] Nordic-Baltic Recommendations on Insolvency Law, Wolters Kluwer: Stockholm, 2016.

^[28] SOU 2021:12, Andra chans för krisande företag – En ny lag om företagsrekonstruktion.

^[29] See M. Möller (ed.), Det svenska genomförandet av EU:s rekonstruktions- och insolvensdirektiv, Iustus: Uppsala 2021.

^[30] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 100–101. See also M. Karlsson-Tuula, Lagen (2022:964) om företagsrekonstruktion, En kommentar, Norstedts juridik: Stockholm, 2022, p. 36; M. Mellqvist & L. Welamson, Konkurs och annan insolvensrätt, 13th ed., Norstedts juridik: Stockholm, 2022, p. 316; M. Ehrenpil, Rekonstruktionsuppgörelsen, Om maktutövning och intresseförhållanden vid rekonstruktion av aktiebolag, Iustus förlag: Uppsala, 2023, p. 74. See prop. 1995/96:5, Lag om företagsrekonstruktion, p. 56-57; NJA 2014 p. 537, regarding the objective of the old FrekL.

^[31] 1 chap. 1 § new FrekL.

^[32] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 110.

^[33] 1 chap. 2 § new FrekL. See also prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 111-114.

^[34] 6 chap. 2 § new FrekL.

^[35] 6 chap. 2 § new FrekL.

^[36] See M. Mellqvist & L. Welamson, Konkurs och annan insolvensrätt, 13th ed., Norstedts juridik: Stockholm, 2022, p. 384-386.

^[37] See information about Ecolog’s successful restructuring at its webpage, available at https://ecologforestry.com/se/nyheter/ (last viewed 2023-08-01).

^[38] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 407.

^[39] 6 chap. 3 § new FrekL.

^[40] 2 chap. 4 § new FrekL. See also prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 352-353.

^[41] See L.-E. Gustafsson, Företagsrekonstruktion och ackord, Norstedts juridik: Stockholm, 2014, p. 39, who describes the question of competence as far as the old FrekL. The new FrekL has not led to any changes in this regard.

^[42] 2 chap. 7 § new FrekL.

^[43] 2 chap. 5 § new FrekL.

^[44] 2 chap. 5 § new FrekL.

^[45] M. Karlsson-Tuula, Lagen (2022:964) om företagsrekonstruktion, En kommentar, Norstedts juridik: Stockholm, 2022, p. 56.

^[46] 2 chap. 8-9, 12 §§ new FrekL.

^[47] Se footnote 8 above.

^[48] See for example M. Karlsson-Tuula, Lagen om företagsrekonstruktion – En papperstiger, Own publisher: Hovås 2006, p. 91; SOU 2010:2, Ett samlat insolvensförfarande – förslag till ny lag, del 1, p. 133-135; A. Persson & M. Karlsson-Tuula, Ett mer flexibelt system för förbättrade företagsrekonstruktioner – hur?, Insolvensrättslig tidskrift, 2016 nr 2, p. 72-74; SOU 2016:72, Entreprenörskap i det tjugoförsta århundradet, del 1, p. 143; M. Möller (ed.), Det svenska genomförandet av EU:s rekonstruktions- och insolvensdirektiv, Iustus: Uppsala 2021, p. 73.

^[49] See SOU 2021:12, Andra chans för krisande företag – En ny lag om företagsrekonstruktion, p. 254-260 and p. 265-270; prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 119.

^[50] 1 chap. 2 § Bankruptcy Law.

^[51] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 120. See also M. Mellqvist & L. Welamson, Konkurs och annan insolvensrätt, 13th ed., Norstedts juridik: Stockholm, 2022, p. 338; M. Ehrenpil, Rekonstruktionsuppgörelsen, Om maktutövning och intresseförhållanden vid rekonstruktion av aktiebolag, Iustus förlag: Uppsala, 2023, p. 191.

^[52] See footnote 9 above.

^[53] See prop. 1995/96:5, Lag om företagsrekonstruktion, p. 73 and p. 180. See also T. Hellners & M. Mellqvist, Lagen om företagsrekonstruktion, 2th ed., Norstedts juridik: Stockholm, 2013, p. 67; A. Persson & M. Karlsson-Tuula, Företagsrekonstruktion i teori och praktik, 3rd ed., Wolters Kluwer: Stockholm, 2017, p. 65-83.

^[54] 2 chap. 10 § new FrekL. Cf. art. 4(3) PRD 2019.

^[55] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 127.

^[56] Cf. C.J. Tabb, Law of Bankruptcy, 4^th ed., West Academic Publishing: St Paul, 2016, regarding factors the court considers in the equivalent test in chapter 11.

^[57] 6 chap. 1 § new FrekL.

^[58] 2 chap. 13 § new FrekL.

^[59] 2 chap. 18 § new FrekL.

^[60] 6 chap. 1 § new FrekL.

^[61] See 6 chap. 2 § new FrekL; prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 249-251 and p. 405-406.

^[62] 2 chap. 11 § new FrekL. Cf. preamble 27 PRD 2019.

^[63] 2 chap. 20 § new FrekL.

^[64] See 8 chap. 29 § Companies Act, see also prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 135-139 and p. 362.

^[65] 2 chap. 19 § new FrekL.

^[66] 2 chap. 20 § new FrekL.

[66] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 134-135, where it states that this rule has its equivalence in the old FrekL. See T. Hellners & M. Mellqvist, Lagen om företagsrekonstruktion, 2th ed., Norstedts juridik: Stockholm, 2013, p. 97, regarding the equivalent rule in the old FrekL.

^[67] 6 chap. 1 § new FrekL.

^[68] 2 chap. 13 § new FrekL.

^[69] See SOU 2021:12, Andra chans för krisande företag – En ny lag om företagsrekonstruktion, p. 599; M. Mellqvist & L. Welamson, Konkurs och annan insolvensrätt, 13th ed., Norstedts juridik: Stockholm, 2022, p. 101-102; E. Palmér & P. Savin, Konkurslagen, 7 chap. 1 § (52), available at (last viewed 2023-08-01).

^[70] 2 chap. 15 § new FrekL.

^[71] Cf. art. 26 and preamble 87 and 89 PRD 2019; M. Veder, art. 26, in: C. Paulus & R. Dammann (eds), European Preventive Restructuring, Article-by-Article Commentary, Verlag C.H. Beck: München 2021, p. 279–281. See also SOU 2021:12, Andra chans för krisande företag – En ny lag om företagsrekonstruktion, p. 602-608.

^[72] See M. Karlsson-Tuula, Rekonstruktören i fokus, Ny Juridik 4:22, p. 76-77.

^[73] SOU 2021:12, Andra chans för krisande företag – En ny lag om företagsrekonstruktion, p. 603-608; prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 359-360.

^[74] 2 chap. 10 § new FrekL.

^[75] 4 chap. 1 § new FrekL.

^[76] 4 chap. 22-27 §§ new FrekL.

^[77] 6 chap. 1-4 §§ new FrekL.

^[78] See for example SOU 2016:72, Entreprenörskap i det tjugoförsta århundradet, del 2, p. 151-153; M. Möller (ed.), Det svenska genomförandet av EU:s rekonstruktions- och insolvensdirektiv, Iustus: Uppsala 2021, p. 172-174; M. Mellqvist, Rekonstruktionsdomaren – några reflektioner, Ny Juridik 4:22, p. 100-103.

^[79] 2 chap. 18 § new FrekL.

^[80] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 269-271.

^[81] 2 chap. 23 § new FrekL; 2 chap. 10a § Bankruptcy Law.

^[82] 2 chap. 23-24 §§ new FrekL.

^[83] 6 chap. 3 § new FrekL. Cf. art. 6(8) PRD 2019.

^[84] 2 chap. 23 § new FrekL. Cf. art. 6(4a) and art. 6(5).

^[85] 2 chap. 25 § new FrekL.

^[86] In the old FrekL, there was a tool called a restructuring plan. However, the plan was not binding for the parties or had any other legal effect, cf. 2 chap. 12 § old FrekL. It was considered as “garniture” compared with the judicial composition, see M. Mellqvist, Ackordet – dödsdömt eller dömt till långvarigt fängelsestraff?, Insolvensrättslig tidskrift, 2022 nr 2, p. 83-84.

^[87] See H. Renman, Något om de nya planförhandlingsreglerna, Ny Juridik 4:22, p. 9-11.

^[88] 4 chap. 2 § new FrekL.

^[89] 4 chap. 3 § new FrekL.

^[90] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 192.

^[91] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 175-176. See also above footnote 5.

^[92] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 170-171. See also M. Ehrenpil, Rekonstruktionsuppgörelsen, Om maktutövning och intresseförhållanden vid rekonstruktion av aktiebolag, Iustus förlag: Uppsala, 2023, p. 250-254.

^[93] 3 chap. 2 § old FrekL.

^[94] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 174-175.

^[95] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 176-177.

^[96] 3 chap. 31 § new FrekL.

^[97] 10 § Rights of Priority Act.

^[98] See footnote 5 above.

^[99] 10 § Rights of Priority Act.

^[100] 10 § Rights of Priority Act.

^[101] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 265. See also M. Mellqvist & L. Welamson, Konkurs och annan insolvensrätt, 13th ed., Norstedts juridik: Stockholm, 2022, p. 375; E. Hellström, Hur blev det egentligen med superförmånsrätten?, Skyddet för ny och tillfällig finansiering enligt nya lagen om företagsrekonstruktion, Ny Juridik 4:22, p. 52-56, who comes to the conclusion that the priority not only covers interim credit.

^[102] E. Hellström, Hur blev det egentligen med superförmånsrätten?, Skyddet för ny och tillfällig finansiering enligt nya lagen om företagsrekonstruktion, Ny Juridik 4:22, p. 64.

^[103] 10 § Rights of Priority Act; 4 chap. 7-8 §§ new FrekL.

^[104] 10 § Rights of Priority Act.

^[105] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 262-263.

^[106] 4 chap. 5 § new FrekL.

^[107] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 214-219. See also H. Renman, Något om de nya planförhandlingsreglerna, Ny Juridik 4:22, p. 9-29; M. Karlsson-Tuula, Lagen (2022:964) om företagsrekonstruktion, En kommentar, Norstedts juridik: Stockholm, 2022, p. 121-123; M. Mellqvist & L. Welamson, Konkurs och annan insolvensrätt, 13th ed., Norstedts juridik: Stockholm, 2022, p. 370 and p. 375-376.

^[108] 4 chap. 7 § new FrekL.

^[109] 4 chap. 8 § new FrekL.

^[110] 4 chap. 14 § new FrekL.

^[111] 4 chap. 17 § new FrekL.

^[112] 4 chap. 17 § new FrekL.

^[113] 4 chap. 20 § new FrekL.

^[114] 4 chap. 22 § new FrekL.

^[115] 4 chap. 23 § new FrekL.

^[116] 4 chap. 24 § new FrekL.

^[117] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 224-225.

^[118] 4 chap. 24 § new FrekL.

^[119] 4 chap. 25 § new FrekL.

^[120] 4 chap. 27 § new FrekL.

^[121] 4 chap. 25 § new FrekL.

^[122] 4 chap. 25 § new FrekL.

^[123] 4 chap. 25 § new FrekL.

^[124] 4 chap. 25 § new FrekL.

^[125] 4 chap. 26 § new FrekL; prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 395-396.

^[126] H. Renman, Något om de nya planförhandlingsreglerna, Ny Juridik 4:22, p. 29–44. But see M. Ehrenpil, Rekonstruktionsuppgörelsen, Om maktutövning och intresseförhållanden vid rekonstruktion av aktiebolag, Iustus förlag: Uppsala, 2023, p. 266-267, who is not convinced by this argument.

^[127] See prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 176 and p. 181-185.

^[128] See for example M. Karlsson-Tuula, Gäldenärens avtal, Vid företagsrekonstruktion och konkurs, 3rd ed., Wolters Kluwer: Stockholm, 2017, p. 71-77; J. Schytzer & O. Wadell, (Konkurs)gäldenärens avtal utifrån ett företagsekonomiskt perspektiv, SvJT 2020, p. 726-728; O. Andrews & C. Brodén, Något om giltigheten av ipso factoklausuler i penninglåneavtal – ett sista (?) inlägg i den rättsvetenskapliga debatten jämte några marginalanteckningar om förestående lagstiftning, JT 2020/21, p. 913-939.

^[129] 3 chap. 12 § new FrekL.

^[130] 3 chap. 11 § new FrekL.

^[131] The legislator was of the opinion that introducing a ban on ipso-facto clauses in bankruptcy is a complex question and needed further inquiry, see prop. 2021/22:215, En ny lag om företagsrekonstruktion, p. 162.

^[132] 3 chap. 1 § new FrekL.

^[133] 3 chap. 2 § new FrekL.

^[134] 3 chap. 9 § new FrekL.

^[135] 3 chap. 10 § new FrekL.

^[136] See the insolvency practitioner’s estate inventory in Saab’s bankruptcy, available at www.konkursboet.se (last viewed 2023-08-01).

^[137] See H. Renman, Något om de nya planförhandlingsreglerna, Ny Juridik 4:22, p. 45.