Trade and Commercial Law Assessment - Honduras - Economic ...

TRADE AND COMMERCIAL LAW ASSESSMENT DECEMBER 2004
HONDURAS
4. Code of Commerce—Suspension of Payments (“Suspensión de Pagos”)
Again tracking the Civil Code, the Commercial Code provides debtors with a way out of
bankruptcy by securing creditors’ agreement to a negotiated settlement, or convenio. Such a
settlement provides final discharge for the debtor who succeeds in performing all his or her
obligations under it. 143 Although agreement on a convenio does not terminate the question of the
bankrupt’s degree of responsibility, 144 it might well have a mitigating influence in debtor’s favor.
The statutory suspensión de pagos provides breathing space in which the bankruptcy parties can
work out a negotiated settlement. In addition to the debtor, the síndico, the interventores, and the
creditors may all present proposed convenios to the court. 145 Ultimately, the court must review
the approved convenio and issue a judicial sentence ratifying it. 146 When the court order becomes
final, the quiebra terminates, along with the duties of the quiebra officers. 147
The statute imposes few requirements on the terms and conditions of the settlement plan. It must
“maintain absolute equality in its treatment of creditors without guaranties,” and if it
distinguishes among creditors “of the same grade,” all such creditors must approve the
distinction. 148 Creditors who enjoy guaranties against property of the debtor and creditors whose
claims enjoy privileged status need not participate in the convenio, which then has no effect on
them and their claim’s status. 149
C. IMPLEMENTING INSTITUTIONS
Honduran insolvency laws would depend on Honduran courts, if they were ever used.
Institutional players specified in the laws, such as trustees and intervenors, are left to the
appointment and supervision of the court.
Supplemental roles might fall to banks (as trustees), the active Banking and Insurance
Commission, the nonexistent Corporation Commission, and the Attorney General according to
the law, but these institutions have never played any part in insolvency matters, show no
inclination to do so, and should have no call to do so, given the absence of any such proceedings.
The reconstituted Banking and Insurance Commission, much fortified in recent years, would be
an exception; it is prepared to play a role in the insolvency of banking and insurance entities.
143
CdCom, Arts. 1551-1667.
144
CdCom, Art. 1609.
145
CdCom, Art. 1560. When confronted with more than one proposal, the court should call the various sponsors
together and urge them to collaborate on one common draft. CdCom, Art. 1571. Failing agreement on a
common draft, all drafts are submitted to vote to choose one, by “relative majority,” for submission to all the
creditors. CdCom, Art. 1572. For acceptance, votes representing more than 50 percent of the participating
creditors and more than 60 percent of the outstanding obligations must approve the convenio. CdCom, Arts.
1573-1574. The statute provides for extensive notice and careful procedural observance at each step in the
process of approval. See CdCom, Arts. 1568-1584.
146
CdCom, Arts. 1585-1586.
147
CdCom, Art. 1595.
148
CdCom, Art. 1561.
149
CdCom, Art. 1565. Or they may elect to participate partially, retaining partially privileged and partially
unprivileged status in their claim. CdCom, Art. 1566.
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