Regarding a total or partial waiver of special privileges already lodged as such in insolvency proceedings

Purpose

1. The purpose of this paper is to examine whether secured creditors, following the lodgement of their secured claims (submission of proof of secured debt), may waive the special privileges deriving from the holding of security and voluntarily swell the class of junior unsecured creditors for the purpose of voting on a composition. Such secured creditors may not be interested in remaining in their class if the Authority’s liability for termination of a concession may be destroyed as to its value by a composition on the basis of a going concern, which may be adopted by the majority of junior unsecured creditors. It would matter not that the majorities of secured creditors referred to in art. 134(3) of the Insolvency Act (‘LCon’) are not met, because the creditors of this class, who would not be ‘bound’ by the composition, would in fact lose the monetary value of their security.Waiver of rights

2. The waiver of a (special) privilege under art. 90 LCon is a waiver of rights under art. 6(2) of the Civil Code (‘CC’). The privilege, as a characteristic of the claim, is the subject matter of the waiver. In general…