Evolution of the institution of

THE SYNDIC-JUDGE

Insolvency has occupied a central role since the ancient times when, it was not
regulated yet, there were certain practices and customs that merchants were practicing
in order to recover their debts. Later, in the modern era, with the increase of the
commercial activity, insolvency has been gradually institutionalized. Initially, in
Romania there was no separate law governing insolvency phenomenon, this was
provided by the Romanian Commercial Code from 1887 which treated the bankruptcy
institution in art. 695-888, in Third Book on Bankruptcy. After 1989, with the
emergence of the market economy in Romania and considering the economic
requirements imposed by the constant fluctuation of the free market appeared the
need to adopt a law on insolvency to regulate the activity of the traders. In 1990, the
insolvency was originally introduced as subject in Law 31/1990 on trading
companies, but the starting point in regulating the insolvency was the year 1995,
when Law no. 64/1995 regarding the reorganization and liquidation of companies was
adopted, as an objective necessity to regulate a field without which it was not possible
the real development of the business environment. Subsequently, given the objective
requirements of the economy and the constant evolution of the business environment
took there was a need for an update of the insolvency legislation, thus in 2006 Law
85/2006 regarding the insolvency procedure was adopted which subsequently in 2010
was amended by Law 169/2010.
The scope of Law 64/1995 was to save the company, in that sense, was
introduced the judicial reorganization of the debtor, aiming to redress the debtor and
the payment of its liabilities or liquidate the debtor's assets, while the ratio was
reversed in the past, back then the individual trader was the main actor of the
commercial life. In accordance with the Commercial Code, the bankruptcy
proceedings had as main object the liquidation of the debtor's assets and the
distribution among creditors of the amounts of money resulted. It was therefore an
unitary, collective, concursual and egalitarian enforcement procedure, leading to the
elimination from the commercial life of the bankrupt, putting first the protection of
creditors and of the credit, in general. Consequently, the judicial reorganization and
the bankruptcy proceedings under Law no. 64/1995, was a procedure performed under
the control and supervision of justice, the syndic-judge was the central figure. Once
this law was adopted, began the real bankruptcies in Romania, being put in difficulty
a series of companies, mostly state owned which due to social reasons, have tried
various strategies, mostly with the agreement of the state and with the direct
assistance of some emergency ordinance or simple ordinances of the governments that
have succeeded during years and which did nothing but to unduly prolonged a

situation that actually went to the same result: the cessation of payments, mostly
toward the state institutions.
Law 85/2006 has revolutionized the insolvency procedure in our country,
especially by the role assigned to creditors in the proceedings, in order to manage the
assets of the debtor through the judicial administrator (joint administrator)/ liquidator,
to decide on their rights on the recovery of debts and on the appoint of the figures first
mentioned who performs the insolvency procedure. The purpose of the procedure is to
cover the liabilities of the insolvent debtor, and as the laws stipulates, the aim of Law
no. 85/2006 on insolvency procedure is set out in Article 2 of the Law, which states
that: the purpose of this law is to establish a collective procedure to cover the liability
of the insolvent debtor.
Although under the new regulations by which Law 85/2006 was amended, the
role of the syndic-judge in the insolvency proceedings was diminished, he was
assuming the position of arbiter, notwithstanding he remains the central figure of the
insolvency proceedings. In other words, the syndic-judge is the one who ensures the
implementation of the insolvency proceedings, in terms of legality, supervising how
this procedure is managed by the insolvency practitioners specialists under the control
and coordination of creditors interested to recover their debts promptly. Thus, the
syndic-judge is the person who represents the court, i.e. the trial court in whose
jurisdiction the debtor has the establishment and where the petition to open the
insolvency proceedings has been decided upon, he is the one who actually leads the
procedure and can control at any time that it is performed running under legal
conditions.
Under the old law 64/1995, the syndic-judge has both jurisdictional and
administrative powers that now under the new regulation this was transferred to the
judicial administrator (joint administrator) or liquidator, as the case may be. Thus,
Law 85/2006 conferred to the syndic-judge the quality of specialized magistrate in
insolvency with jurisdictional power and judicial control upon the activities carried
out by the judicial administrator and liquidator. The jurisdictional powers of the
syndic-judge are stipulated in Article 11 para. 1) of Law 85/2006.

Thus, as we mentioned up, the syndic-judge has jurisdictional powers which

means that he directs the entire insolvency procedure from opening to closing, by
delivering resolutions in non-contentious procedures and sentences in contentious
procedures if those proceedings, following all steps provided by the law and resolving
all conflicts that can appear in the procedure.
Alongside of the syndic, creditors also have an important role. They acquire
the quality of participants in the procedure by submitting their claims in order to be
included in the list of liabilities and only if the amounts requested to be included,
were partly or entirely noted in the table of creditors. Through the actions and
obligations they have in the insolvency procedure, they are obliged to pursue their

interests within the limits established by the law and their approaches must be pursued
in good faith and with the respect of the provisions regarding the public order, any
abuse from them can be sanctioned. Since the entry into force of the new civil code,
regarding the guilt that is provided in Chapter III art. 15 and 16, this is committed
intentionally or by fault. Often, in practice it was found that many of the creditors
abuse of their trial and procedural rights, leading the insolvency procedure to a land
that exceeds concursual framework governing the insolvency procedure. Since the
insolvency procedure is a collective procedure, as an institution with decision-making
role, the creditors meeting is formed. The meeting of creditors is an entity without
legal personality consisting of all creditors enrolled in the list of creditors. Meeting of
creditors is convened by the judicial administrator/ liquidator and as an imperative
provision he is the one who will chair the meeting and will provide the secretariat, if
the syndic-judge has not ordered otherwise. The law also allows the creditors
committee and the creditors holding individually at least 30% of the total mass of
credit to convene the general meeting of creditors. The syndic-judge does not
participate in the creditors meeting but it can abolish the decisions taken for reasons
of illegality (eg.: vices of form and substance regarding the convening or the
convocation, the vitiation of the ongoing procedure of the meeting, not fulfilling the
requirements provided by the law regarding the conclusion of the report of the
meeting of creditors, etc..).
The committee of creditors may be appointed provisionally by the syndicjudge after the preliminary table of the creditors is published. Thus, the syndic-judge
may appoint a committee of creditors consisting of 3-7 creditors, among creditors
with secured, budgetary, unsecured claims, the largest by value. In order to perform
the procedure in the best conditions, the syndic-judge will look to appoint a chairman
of the creditors committee, to represent their interests before the court. If the syndicjudge omits to appoint a committee, in the first meeting of creditors this will be
established by the legal vote of the creditors present that met a quorum of at least 30%
of claims recorded in the preliminary table of creditors. If the creditors committee was
designated by the syndic-judge, subsequently can be replaced by another committee
established by vote of creditors in the first meeting, with the aforementioned quorum.
Among the duties of the creditors committee duties it includes "the control of
opportunity of the managerial decision-making taken by the Judicial administrator /
liquidator or the debtor; bringing the actions for annulment of the debtors deeds
during suspicious period, filling a request to waiver the right of the debtor to manage
its assets, etc".1

Since the creditors are the key beneficiaries of insolvency proceedings, the
law forces them to play an active role in this process but in an egalitarian way. They
represent the decision-making factors in a series of key areas. Granting creditors an

Art. 17 from Law 85/2006

active role in the procedure is extremely important when the institutional framework
is relatively weak.
Otherwise, creditors will lose confidence in the procedure where all important
decisions are taken by people who are perceived as having limited expertise and
independence. We can say that in the current circumstances, the liability of the
creditors has become comparable to that of the judicial administrator or liquidator2,
and the endeavors made from this position, can be considered fully justified, but as
long as they do act only for the recovery of their debts, but they subscribe for the
overall aims of the insolvency proceedings.
The syndic-judge and the liquidator play a central role in the effective
implementation of the law. Although their roles vary substantially, they are similar in
one important respect. Since they represent public authorities they are obliged to
ensure that the law is applied effectively, egalitarian and fairly. Moreover, since they
normally have the most information about the circumstances of the debtor, they are in
the best position to take decisions with full knowledge of the fact.
Therefore, a rightful process requires that a dispute between the liquidator and
the interested party to be judged by a competent court through the syndic-judge.
In the procedure, the liquidator and the judicial administrator (joint
administrator) are appointed by the syndic-judge, in many cases being requested by
the debtor or by the creditors. In general, the nomination derives from a list of
candidates who have submitted technical offers to the case file. To avoid any
misunderstanding, the appointment should be excluded when there is any evidence of
a conflict of interest arising from a preexisting relationship with the debtor, a creditor
or member of the court.
The law provides the possibility to replace the liquidator or the judicial
administrator through a decision taken by a majority of creditors or by the trial court,
respectively the syndic-judge, who is acting on his own initiative through the powers
conferred by the law or at the request of either party who can justify an interest born,
current and valid. In the latter case, the syndic-judges decision should normally be
based on a determination that the liquidator has breached his duties stipulated by the
law.
As official appointed by the court, the judicial liquidator has a duty to take
care of all parties from the procedure and therefore can be held responsible by all
these parties, for a breach of this obligation. The liquidator is obliged to exercise due
diligence to fulfill his duties.
If it becomes clear that he is negligent, he will have problems in attracting a
2

Nicoleta ndreanu, Insolvency in the Regulation Law no.85/2006, Comments, doctrine,

jurisprudence, the Library of Professionals, Publisher Universul Juridic, Bucharest, 2012, pg.140-141

qualified stuff and also incurring penalties. The liquidator is subject to creditors
control, and according to the law he must obtain an advance approval of creditors
before making any crucial decisions for the proper course of the procedure, an
important aspect that should not be ignored is that the frequent convocation of the
creditors for any steps taken by the judicial administrator that leads many times to the
delay and extension of the procedures with direct effect on the debtor who may suffer
prejudice.
Between syndic-judge and the judicial liquidator there is a close connection
which involves a transparent and effective communication. In the framework of the
procedure, according to article 47, para.(4) "the debtors right to manage ceases from
the date the commencement of the bankruptcy has been disposed." Thus, the judicial
liquidator is the one who manages the debtor's activity under operational control of
the creditors. Also, the judicial liquidator is the one who constantly maintains a
connection between the debtor, the creditors meeting and the syndic-judge. The
judicial liquidator is obliged to notify the syndic-judge of all the steps taken in the
procedure by means of monthly reports he is obliged to submit. The syndic-judge has
judicial control powers over all the actions undertaken by the liquidator. When he
observes that the judicial liquidator has not fulfilled his obligations "at any stage of
the proceedings, the syndic-judge, ex officio or at the request of the creditors
'committee, may replace him.3
Thus the powers conferred by law to the syndic-judge, give him a neutral
quality in the insolvency proceedings, emphasizing its role in the management of the
case, which strengthens his position as magistrate, arbiter of the insolvency
proceedings.
Also, in the preventive concordat, the syndic-judge plays a key role with the
following duties:
a) to appoint a temporary conciliator;
b) to note and, if appropriate, to approve, at the request of the conciliator, the
preventive concordat;
c) to note, at the request of any no signatory creditor of the preventive concordat, the
fulfillment of the conditions required to be included in the list of creditors who have
joined the preventive concordat;
d) to dispose by resolution, under art.22, the temporary suspension of forced
executions against the debtor, under the project of the preventive concordat proposed
by the debtor and sent to the creditors;
e) to judge the actions for nullity of the preventive concordat;
f) to judge actions for rescission of the preventive concordat.

Art.22 paragraph 2 and art. 24 paragraph 2 from Law 85/2006

Education and permanent professional training of judges is an essential

element for the independence of the judicial system. Also "the constant professional
training of judges and prosecutors is the guarantee of independence and impartiality
in exercising their function"4. In a century more and more often an independent
judiciary system, and the solution of many complex and sensible social problems is
done through the judiciary system, the need for a qualified professional training is
perceived as more necessary than ever.
To meet the objective demands of society, judges must continue their
professional training throughout their careers in order to develop legal skills and
knowledge given the fact that these are integral parts of their working lives of selfdevelopment.
The syndic-judge must hold the art of effective communication given its active
role in the procedure, not least in the civil trial. Thus, under its active role, the judge is
obliged to discuss the de facto and de jure aspects of the case with the parties, to ask
the right questions and to provide the necessary instructions to the parties of the
process. It is also an important tool for procedural efficiency as it is established by the
fundament for the management of the procedures which resembles to the principles of
effective communication. If the request of a party is not sufficiently clear, or has not
been formulated in a precise manner, the judge must determine what the claimer is
seeking through its request. If the statements of a party are incomplete, the court must
determine the full presentation of the relevant facts.
This principle applies also in cases where the facts alleged are not sufficient to
justify the request of a party, if the facts, even if they have not proved sufficient to
admit or reject the claim. The obligation ask relevant questions, confers the judge a
powerful tool to structure the proceedings of the case, to focus on the discussions of
the parties and to investigate those points on which the parties disagree. By
confronting parties with the facts alleged by the adverse parties, the judge can
determine which allegations are contested and how much they differ.
Both the independence and the impartiality of the judges are fundamental
elements not only to do justice in a given case, but also to give the citizens confidence
in the justice system. Without this confidence, the justice system cannot enjoy respect
and acceptance, which are essential for its effective operation. Therefore, it is
important for the judge to be perceived as independent and impartial.
The procedural incidents on the composition and constitution of the court has
some exception in case of a syndic-judge due to the large number of cases before the
court and the small number of syndic-judges who resolve cases in insolvency
proceedings. Also, as far as the provisions of insolvency law does not cover certain
4

Art. 35 paragraph 1 from Law 303/2004 regarding the status of the judges and prosecutors

legal aspects "they can be completed if compatible with the Civil Procedure Code,
Civil Code, Commercial Code and Regulation no. 1.346/2000/C.E. on insolvency
proceedings, published in the Official Journal of the European Communities no. L
160 of 30 June 2000 "5.
Thus, the principle of judicial impartiality requires abstention from the judges
when they are found in conflict of interest. The jurisprudence has developed an
exception to this requirement when all the judges of a court are in this conflict. The
Code of Civil Procedure provides various situations of conflict of interest that may
lead to incompatibility, peremptory challenge or abstention of a judge regarding a
litigation before the court. Most reasons for peremptory challenge derive from a
personal, familial or professional relations of a judge with a part. This is the case, for
example, a judge who is a relative with a part or a lawyer. In general, the challenge is
also possible, if the court has an interest in favoring any part or there is clear evidence
that the judge may partial to one part. These procedural incidents clearly serve to
preserve the impartiality of the courts. The challenge mechanism should apply in all
cases resulting in a conflict of interest.
Insolvency law will be effective only if the judicial system has sufficient
capacity to implement it. Regardless of the quality of the judiciary system, the
insolvency law should provide adequate guidance on how the bankruptcy-judge
should exercise its discretion power when making a determination on economic and
commercial issues. When the capacity of the judicial system is limited, the role of the
judge must be reduced in determining the viability of the enterprise.
The insolvency procedure is a dynamic process. Unlike many other procedures
that involves an investigation of historical events, insolvency proceedings are taking
place in real time and is conducted promptly: some delays may have a negative effect
on the value of the assets or the viability of the enterprise. Therefore, it is important
that the procedure to be put in practice to ensure that interviews are taken quickly and
that the decisions are implemented quickly. It is also essential for the appeal to be
accelerated expedited and to be put in practice with celerity.

If until now, we had a dual system, divided into civil and commercial law,
starting from October 1st 2011 we moved to a moist system in which civil and
commercial law are intertwined and their unique source is the new Civil Code (NCC),
i.e , art. 1, para. (2) of the old commercial code is established in the rule of art.2 of the
new Civil Code (NCC). The New Civil Code (NCC) applies also to the legal
relationship and which are part the legal professionals, including their relations with
other subjects, as defined in art. 3) of the new Civil Code (NCC).

Art. 149 from Law 85/2006

At present, given the new challenges brought by the adoption of the New Civil
Code, the new Civil Procedure Code and the laws implementing them, I think it is
important to point out the existing concerns for the developing of a unified insolvency
legislation. This objective assumed by the Ministry of Justice, is very large. The
adoption of the Insolvency Code is expected to occur within approximately 17
months, from January 2012, period which includes the parliamentary debate.

Therefore, currently the elaboration of a real Code of Insolvency would

represent a necessary and an important step for the insolvency specialists. I also
believe that, the creation of such a draft of a code and its adoption would provide
mitigation of current legislative controversies on the legislative, while eliminating the
unnecessary practices, leading to a more effective cooperation between the syndicjudge and the insolvency practitioners, creating the best prerequisites for dealing with
cases subject to this procedure at the competent level dictated by the requirements for
the modernization of the economic relations and the need to increase mutual trust in
the framework of the commercial relations.
Since the adherence of Romania to the EU until now, we can affirm that the
legislation of our country, even if initially has only solved partially the new situations
created by the market economy, was largely harmonized with the European
insolvency regulation. It should be noted that a stable market economy and a
transparent business environment has a direct effect on the insolvency institution
which in turn it also becomes more stable and more efficient.

The legislative changes introduced in recent decades, in such a vast and

important area for the national economy, shall be developed continuously in order to
achieve their accordance with the internal requirements and also with those imposed
by the need of their adjustment to the overall level European economy.
Cross-Border insolvency is an inevitable consequence of the globalization and
financial crises of large-scale corporations, which often cross the boundaries of a
state, or even those of continents, involves economic systems that become affected
globally.
In subject of insolvency, E.U Council adopted Regulation no. 1346/2000/C.E.
which entered into force on May 31, 2002. As mentioned earlier, the legislation of our
country has been mostly harmonized with Regulation 1346/2000/CE by implementing
Law 637/2002 on private international law relations in insolvency and Law 85/2006
on insolvency procedure which was amended by Law 169/2010.
The aim of Regulation no. 1346/2000/C.E. is to establish the international
jurisdiction, in other words, it establishes the court of the Member State which can
open the insolvency proceedings. Also, this regulation establishes a new concept
center of main interests (COMI) of a debtor which represents the place where to

open main insolvency proceedings. For legal entities, namely companies, this place is
presumed to be its establishment. According to article 3, par. (1) of Regulation In the
case of a company or legal person, the place of the registered office shall be
presumed to be the centre of its main interests in the absence of proof to the
contrary.
Thus, from this provision comes up the theory which states that the COMI
may or may not coincide with the registered office. Another important aspect of this
regulation is the fact that its provisions can be applied only to the debtor whose center
of main interests is in the European Community. The Regulation provides that
proceedings opened in several Member States to be coordinated, primarily, through
active cooperation between different syndic-judges. All decisions taken by a courts of
a Member State which has jurisdiction regarding the principal procedures are
automatically recognized in another Member State without further review.

The Regulation of EU had, so far, a significant impact on cross-border

insolvency proceedings within the European Union. However, the regulation does not
lead to the creation of a uniform code of insolvency, applicable throughout the EU,
but provides a set of rules for determining the laws of the country which are incident
and should apply to a particular insolvency and to determine the way the assets are
and the creditors located outside the jurisdiction of main proceedings are treated.

At the international level, has been developed a worldwide standard of CrossBorder cooperation, called The UNCITRAL Model Law on Cross-border Insolvency.
Although the model law is not binding, it has as main to boost the process of
adaptation of national legislation in the area of insolvency. The Implementation of
UNCITRAL Model Law is also supported by prestigious international institutions like
World Bank, I.M.F. or the Asian Development Bank. The fundamental objectives of
this model law are:
- cooperation between courts and other competent authorities in international
insolvency litigation;
- ensuring greater legal certainty for trade and investment;
- Fair and efficient administration of international insolvency proceedings, so as to
protect the interests of all creditors and other interested persons, including the debtor;

- Protection of debtor's assets and optimization of their value;

- Facilitation of the rescue of financially troubled businesses, protecting
investment and preserving jobs.

We want to mention that, following the researches made, we found that in the
insolvency area, Romania is comparable with most European countries, both in terms
of seniority of rules regarding the insolvency, but also in terms of their background.
Thus, in many jurisdictions from Europe, insolvency only applies only to entities with
commercial activities or similar entities, such as France or Belgium, in other countries
there are special regulations for entities or individuals who are not traders. There is in
this respect jurisdictions that do not distinguish between traders or no traders, between
legal entities or entities with no legal personality, such as the example Austria,
Germany and Cyprus.
In Austria the bankruptcy of the natural person and the legal entity is governed
by the Bankruptcy Act I.O. from 1914, reorganizations are governed by the
Settlement and Recomposition of Debts Act . While the procedure of the the
Settlement and Recomposition of Debts Act allows a release of duty of the debtor for
all debts by the payment of a quota to the creditors, reorganizations, in accordance
with the law of business reorganization, supports the restructuring of a viable business
of the debtor.
In England and Wales insolvency procedure is governed by the Insolvency
Act of 1936 - Insolvency Law - Insolvency Act, as it was amended by the Insolvency
Act 1986 (c 45) from 1986 and 2000 and the Enterprise Act enterprises - Enterprise
Act in 2002.
In Belgium and Luxembourg the insolvency procedure provides that a debtor
is unable to pay his debts that he has toward his creditors. To ensure that the debtor's
obligations toward its creditors are not canceled, there are legal procedures that allow
the creditor to obtain the total or partial payment of its debts.
In France, insolvency is governed by the Legislative Guide on Insolvency Law
- Guide lgislatif sur le droit de linsolvabilit, developed by the Commission of the
United Nations on International Commercial Law C.N.U.D.C.I. in 2005 in New
York. The Guide proposed since the beginning nine important goals, starting from the
most important one, namely, providing and guaranteeing a market to promote stability
and economic growth, which mostly represents the essence and the main purpose of
insolvency law, in general, and particularly in France, as one of the first EU countries.
In Greece insolvency is defined as a situation where the liabilities of a person
exceed his assets and that person cannot pay the creditors. Lately, it was discussed a
lot throughout Europe and the world about the current situation of Greece, as member
state of the European Union, which is itself in a precarious financial situation,
unprecedented, seeking solutions every day, to overcome this situation.
In Italy the legislation that regulates first the liquidation, insolvency,
restructuring proceedings of the legal person, is structured as follows: Royal Decree

no. 267 from 16 March 1942 in Insolvency (Falimento), Agreement with creditors
(Concordato preventivo) and liquidation of administrative share (Liquidazione Coatta
Amministrativa), as subsequently amended and completed.
In Norway insolvency is regulated by:
Act on Debt Agreements and Bankruptcy (Bankruptcy Act), and
The Creditors Recovery Act (Recovery Act). Both documents are dated June 8,
1984 and entered into force on January 1, 1986. For private persons, the Act regarding
the Voluntary and Binding compositions for Private Persons (Composition Act) is
also applicable. The Act is dated July 17, 1992 and entered into force on January 1,
1993.
The Dutch Bankruptcy Law provides three different types of insolvency
proceedings:
bankruptcy, which applies to companies, other legal entities and individuals;
suspension of payments (preliminary and final), which can be granted to most
companies, legal entities and individuals carrying out a business, and
debt reorganization of natural persons.
In Spain, on September 1st 2004 came into force, the new Spanish Insolvency
Code. The new code establishes a new insolvency procedure available both the
civilians and traders and governing both the liquidation and also the reorganization of
a debtor.
In Sweden, the insolvency procedure is provided by law no.672/1987
regarding the bankruptcy, as the impossibility of a person to pay its debts properly,
this inability not being temporary. The persons unable to pay can be declared
bankrupt (i konkurs), regardless of their nature - natural or legal persons.
The financial crisis has made its presence felt since 2008 in the global
economy and had a major impact on commercial companies that have started to face
major financial difficulties. The only companies that have resisted the market, with
the outbreak of the crisis, were the ones who showed their performance and their
ability to produce profit and welfare.
Until the outbreak of the financial crisis, the market value of assets was very
high, so the bankruptcy of a company was seen as beneficial option for creditors
whose debts were satisfied to a large extent. Thus, with the financial crisis this
balance was reversed, assets started to lose their value on the market and it became
very difficult to sell them and creditors were not satiated. Bankruptcies of companies
may have unfavorable consequences for the entire social and economic environment
in which it operates, including over the employees, local community, business
partners and even over the state.

As for that,
insolvency specialists, focused heavily on the judicial
reorganization, where they found chances of recovery for companies in financial
distress. But unlike the laws of other countries, such as for example Austria,
Germany, England, France or Belgium, the reorganization is almost a mandatory rule,
to continue the activity of debtor in financial difficulty, for maintaining the
employment, the additional investment made by shareholders or recapitalization of
companies either by a capital injection, or by recovery of debts from personal debtors,
in Romania and in other countries reorganization was used as a refuge for those who
the end, they are seeking an extension of an unprofitable activity, thus creating further
disruptions and losses that cannot be covered later on.
We believe, therefore, that the support of some authors that the priority in
Romania is the reorganization of companies and then entering into bankruptcy is
wrong, which was also confirmed by judicial practice in this field. In all years since
1990, it has been shown that only a percentage of 2% of all companies that have
demanded a reorganization have successfully achieved it, which is too little.
To combat the financial crisis in the business environment, the Romanian
legislature introduced Law 381/2009 regarding the preventive concordat and the adhoc mandate, which represent prevention proceedings of insolvency. Thus, the current
law of the preventive concordat and the ad-hoc mandate, by its nature of prevention,
represents a legal procedure of taking preventive measures against insolvency of
companies in financial difficulty, to give them a real chance of not reaching
bankruptcy. The effectiveness of this regulation depends largely on the timing the
debtor in good faith, asks for the help of creditors to pay its eligible liabilities, and
them, in turn, preferring this solution to avoid bankruptcy of the debtor, they have the
possibility to opt for the safety in the recovery of the debts. Once, however, with the
promulgation of law on the introduction of the preventive concordat and the ad-hoc
mandate, the effectiveness which is also precarious of the reorganization is
diminished very much, which did not have a success in no time from the appearance
of insolvency law.
Consequently, the insolvency is both a political and a social concern very
important not only nationally but also internationally. The mutual interest in this area
of law is basically influenced by the pressure of the economic globalization.
Companies may enter into insolvency, for various reasons, some parties involved may
waive any claims against the company in insolvency by treating this case as one
falling within the normal risks arising from investment decisions other consider
necessary the participation in the proceedings. Insolvency systems are, generally,
characterized by this simple business approach, an approach that is more in
accordance with law and economics.
In order for the insolvency to become a functional institution in Romania, as it
works for hundreds of years in the European Union, the legislation should bring to the
right path this institution. The economic life of a country indirectly contributes to the

upward path of the profession of magistrate (syndic-judge) and also to the profession
of insolvency practitioner or conciliator. In the insolvency laws, we believe that an
anti-crisis measure, as it is promoted by Law nr.381/2009, regarding the introduction
the preventive concordat and ad-hoc mandate, could lead to a rapid recovery of the
economy, the business in general, creating the prerequisites to replace companies that
are surviving one day to another, without financial stability with others that are strong
financially and show a very good performance
The problem to unify the practice in insolvency is more than obvious the ever
and remains an intense topic, as long as the professions of insolvency practitioner and
that of the syndic-judge, become increasingly complex professions, with a high
degree of professionalism. The syndic-judge, in turn, shall be the person who
represents a discussion partner willing to understand immediately, and decide
promptly where parties have divergent interests. This will be possible only through
continuous professional training, to make them ready to meet all the exigencies
imposed by the case files which have became more and more complex.

GROSARU & ASSOCIATES

Bucharest
Andi Gabriel Grosaru attorney at law