Since 1 April 2009, the Belgian Business Continuity Act (WCO/LCE) has replaced the Judicial Composition Act. It offers companies experiencing temporary financial difficulties the opportunity to continue their activities or to transfer them fully or partially, thereby maintaining jobs.

Specifically, a company with WCO/LCE status is temporarily protected against its creditors. This gives them breathing space to make it through the following months and to safeguard their continued existence.

The Belgian Business Act in practice

One of the main advantages of the WCO/LCE is its low threshold. A company can rely on the WCO/LCE if:

• its continued existence is under threat;
• a realistic recovery plan or a transfer scenario would safeguard all or part of the company's economic activity and jobs;
• it can continue to operate during the period of protection, provided it can repay its current debts.

If the company meets these criteria it has two options for a solution:

• Legal procedure
  The company must submit an application for legal restructuring with the commercial court.
• Out-of-court procedure
  The company tries to come to an amicable settlement with at least two creditors without court intervention.

Whether this will actually lead to a solution is difficult to predict. Each case is different – it all depends on the creditors and the feasibility of restructuring.

Amendment

A couple of years after the introduction of the law it was clear that it was not producing the desired outcome. There are various reasons for this:

• compared to the number of bankruptcies, the number of WCO/LCE applications remained limited;
• business continuity was only guaranteed in around 30% of cases. This figure is skewed, however, as some bankruptcies only concern non-profitable activities; the healthy business activities were rescued under the WCO/LCE. Often, the cause of failure is late application or an unrealistic recovery plan;
• this procedure sometimes lead to abuse, such as applying reduced prices for the sale of assets or unsavoury commercial practices during the period of protection;
• a significant snowball effect, where customers or suppliers of companies with WCO/LCE status ran into difficulties themselves.

For this reason the WCO/LCE was amended by act of 27 May 2013 which came into force on 1 August 2013. The amended act removes grey areas and better informs creditors, thus increasing the chance of success of legal restructuring.

The Belgian Business Act (WCO/LCE) covers a particularly wide spectrum. We will discuss the different options and their pros and cons in further detail.

The legal procedure

In this case the company starts a legal procedure so that the court can facilitate a smooth rescue and recovery process.

How does this work in practice?

The company must submit an application for legal restructuring with the commercial court. It must also provide a clear picture of its financial situation based on its balance sheet, annual accounts and accounting.

• If the court approves the application, the company is protected against its creditors for a maximum of 6 months (this can be extended to 18 months under certain conditions). Specifically, this means that:
• the company temporarily does not have to pay its current creditors, although it is free to decide to do so nevertheless – on condition that continuity demands this;
• its movable property or land and buildings cannot be attached;
• it is not possible to declare the company bankrupt, dissolve it or liquidate it.

• If the court rejects the application, the company has 8 days in which to lodge an appeal. It remains protected against its creditors until the decision on appeal.

Useful information: the protection against creditors is already effective at the time the court reviews the application.

Three portals

There are three types of legal restructuring, also known as 'portals':

Amicable settlement

The company can try to come to an amicable settlement with at least two creditors under the court's supervision.

Advantages

• The managing director or owner retains power of decision, as the court only fulfils a supervisory and monitoring role.
• The court can impose 'moderate payment terms' on the creditors if they show little flexibility, thus forcing them to grant the company deferred payment terms.

Disadvantages

• Whether a settlement can be reached depends on the goodwill of the creditors.
• The company only enjoys legal protection, not economic protection. By publishing its WCO/LCE status in the Belgian Official Gazette, the company risks reputation damage or a (permanent) breach of confidence with its customers and suppliers.
• The company must notify its employees of the procedure, which may lead to unrest.

Collective composition

A company that opts for this procedure will try to come to a composition with all its creditors under the court's supervision. This is done on the basis of a recovery plan and an arrangement for outstanding debts that can be partially cancelled.

Since the amendment of the WCO/LCE each creditor must, in principle, be paid at least 15% of their outstanding debt through the recovery plan.

Once a majority of creditors has voted in favour of the composition and the court has approved this, it becomes binding on all parties – and therefore also on any non-preferential creditors who did not vote on the recovery plan and debt rescheduling.

Advantages

• The managing director or owner retains the power of decision and control over the company.
• The company has five years in which to complete the recovery plan.
• Even if it concerns a collective composition, it is possible to come to individual arrangements with each creditor or group of creditors.
• Creditors who are difficult to convince may be obliged to respect the composition through a vote – on condition of course that there is a majority.

Disadvantages

• The result of this type of vote is sometimes difficult to predict, especially if not all creditors turn up.
• The company only enjoys legal protection, not economic protection. By publishing its WCO/LCE status in the Belgian Official Gazette, the company risks reputation damage or a (permanent) breach of confidence with its customers and suppliers.
• The company must notify its employees of the procedure, which may lead to unrest.

Transfer of activities

This option is intended to protect the company's viable activities and to apply for liquidation or bankruptcy for the remaining activities. This can be done optionally at the request of the company, but also mandatorily, for instance if the conditions for bankruptcy are met or if the creditors and/or the court do not approve the recovery plan.

Specifically the company will, under the court's supervision, try to reach a composition for full or partial transfer of its activities. Once a bidder has been found, the court will decide if the bid and the arrangement for creditors is fair and acceptable.
  
Advantage

• The company can rescue all or part of its activities without having to go bankrupt first.

Disadvantage

• A legal representative must supervise the transfer, which means that the managing director or owner no longer has (sole) power of decision.

How much does the legal procedure cost?

Because the WCO/LCE procedure has to remain as accessible as possible, the legal costs are limited. Since 2013, however, the applicant must pay a fee of EUR 1,000. There are also some other minor costs, such as publication in the Belgian Official Gazette. In some cases there are also administrative costs, e.g. sending registered letters.

There are, however, indirect costs as well in that the company has to spend a lot of commercial time on preparing and implementing the procedure, or has to call in external advisers. Restructuring can also require a substantial budget.

The out-of-court procedure

The company can try to come to an amicable settlement with at least two creditors without having to involve the court.

The parties involved decide mutually and freely how to make the company financially sound again. The composition is only binding on the creditors who have taken part in the negotiations.
 
Advantages

• The company itself chooses the creditors with which it wishes to negotiate.
• The composition is not published, only filed with the court registry. The risk of reputation damage is therefore much smaller than with a legal procedure.
• No court costs.
• No court intervention.
• This is attractive for creditors, as a legal procedure or failure entails the risk of having their claims frozen or remitted.

Disadvantage

• The negotiating creditors have full control of the process. The court cannot oblige them to grant a postponement of payment or waive part of their claims.

How much does the out-of-court procedure cost?

Obviously there are no court costs as no legal procedure will be started. However, the negotiations require a substantial time investment on the part of the company, and sometimes external advisers must be paid.

Depending on what is agreed on with the creditors, the restructuring phase can incur significant costs, especially if it concerns a thorough restructuring.

What impact and practical consequences does the WCO/LCE status of a customer or supplier have on your activities? 14 practical questions and answers.

The basics

1. How do I know if a company with which I do business has applied for WCO/LCE status?
2. I am a creditor in a WCO/LCE procedure. Should I engage a lawyer?
3. Do I have a say in the recovery plan of a company with WCO/LCE status?
4. How can my vote influence the recovery plan or debt settlement?
5. What will the bank do if a corporate customer applies for WCO/LCE status?
6. Are there alternatives to the WCO/LCE?
7. Where can I find further information and support?

You are a supplier and your customer applies for WCO/LCE status

8. Can I terminate a long-term contract with my customer if they apply for WCO/LCE status during the term of the contract?
9. Supplying to a customer with WCO/LCE status entails certain risks. Can I ask for payment in cash to hedge the risk?
10. Can I repossess goods not yet paid for but already delivered to my customer?
11. Does my credit insurance also cover claims on companies with WCO/LCE status?
12. Can I record receivables on a customer with WCO/LCE status as a tax deductible depreciation?

You are a customer and your supplier applies for WCO/LCE status

13. Should my supplier continue to supply to me, even if they have applied for WCO/LCE?
14. Is it advisable to continue to do business with this supplier during the WCO/LCE procedure?

---

Cash management is an SME's frontline weapon, and payment terms are a key means of keeping it under control – providing companies proactively open negotiations with their suppliers. But this solution remains underutilised by entrepreneurs

Cash flow difficulties are the number one cause of company bankruptcy in Belgium. Business owners face a constant battle to stay in control and maintain the balance of their inflows and outflows. Negotiating payment terms is one of the levers that can be employed: shortening them for customers while extending them for suppliers. In Belgium, the statutory deadline between companies is 30 days. Yet the reality can be different, since either trading partner may deviate from the rule. Where one of the parties is in a dominant position, the other is often obliged to accept the conditions it imposes... meaning its payment term becomes longer. Everything is negotiable, however, even with "big" suppliers, as long as you formalise the situation and ensure you protect your business relationship.

Who is your supplier?

They say information is power, and there is some truth in this. Indeed, the more you know about your "opponent", the more you will be able to turn the tables. How are the company's finances, and what is its cash position? Is it experiencing difficulties? Where is it placed on the market, particularly in relation to its competitors? What is your dependency ratio in relation to this partner? How does it make payments, and what is its purchase history? The answers to these questions will allow you to take up better positions in the negotiations, and find the best angle to launch an attack that catches the other side by surprise. Specialised websites, data banks, word of mouth (the competition): all means are justified in order to find out more!

What do you want to gain?

And a resulting question: what are you willing to put on the table to achieve your objective? In other words, you need to be properly prepared and establish a strategy regarding what you are willing to concede (and how much this will cost you) and what you absolutely want to gain in return. Remember that the other party has presumably not requested anything, and potentially has little to gain. Therefore, you cannot arrive empty-handed. Are you willing to order larger volumes in order to extend your payment terms? Can you envisage a long-term contractual commitment? Could you contemplate paying more in return for spreading your debits further? Imagine you are playing poker: clearly, you should keep your cards close to your chest. Wait for the right time to show your negotiating partner that you are prepared to make concessions.

How can you negotiate successfully?

The art of negotiating is a difficult skill. However well prepared you are, keep the following principles in mind:

• Even if you have brought a proposal to the table, listen to the other side and pay attention to detail so that you can react quickly.
• Do not be frightened of bearing your teeth a little, even if you are concerned about spoiling the business relationship with your supplier. Stand your ground and mention what the competition can offer you, for example.
• You must control how you communicate, so that you avoid giving the impression that you have cash management problems. Emphasise that payment delays do not help anyone, and that it would be better to agree on a reasonable and sustainable schedule.
• If your business relationship is established, mention your positive partnership and your desire to see this continue.
• During discussions, regularly refer to how far you have come and your shared progress to date. This positive tone will be well received.
• If the negotiations stall, try to resolve the difficulty by pulling out a trump card, for example (i.e. a concession).
• Remember: a good agreement is balanced, and leaves neither party feeling wronged. So do not be too greedy: the outcome must be worthwhile.
• Are you happy with the situation? Move to finalise the deal, either by accepting what is on offer or by finally opting for a fair compromise.

William De Vijlder, Group Chief Economist, BNP Paribas zooms in on increasing geopolitical uncertainties.

The slowdown of the global economy which became increasingly visible in the second half of last year has many causes, but there is broad agreement that rising trade tensions, import tariff hikes and concern about the pace of US monetary tightening acted as clear headwinds. In Europe, Brexit-related uncertainty played a role, as well as sector-specific issues, like new emission standards for the automobile sector. Clearly, uncertainty, in various guises, was a big issue: uncertainty about the economy (the international consequences of China’s slowdown), about economic policy (the Federal Reserve’s monetary stance), about political decisions (soft or hard Brexit, Italy’s budget) and about geopolitics (considering that the build-up of commercial tensions between China and the US is about more than the bilateral trade deficit).

Geopolitical uncertainties on the rise

Whereas economic, economic policy and political uncertainty tend to come and go, depending where we are in the economic and political cycle, research based on media coverage of geopolitical tensions shows that geopolitical uncertainty has on average been higher since the turn of the century compared to the 1990s. This higher average is associated with an increased frequency of uncertainty  spikes, triggered by events like 9/11, the Iraq war, the Arab spring, the Crimea, Syria, terrorist attacks, etc. These events illustrate that geopolitics now covers a broad range of issues, well beyond the older concept of how nations project their power internationally and react to the behaviour in this respect from other nations.

Empirical research shows that an increase in geopolitical risk weighs on industrial production, employment, international trade, consumer confidence. Moreover, whereas certain events can have a short-lived economic impact, because after a spike, uncertainty drops quite quickly, geopolitical threats (without an event necessarily occurring) can cause a sustained increase in uncertainty and hence have a longer lasting impact. This issue of resolution of uncertainty (“how much longer do we need to wait until we know the outcome?”) has been clearly visible in the reaction to the postponements of Brexit day.

A top priority?

Newspaper articles about geopolitical risks may be numerous but, judging from the mapping in the Global Risks Report 2019 of the World Economic Forum, companies are, in recent years, more concerned about climate change and cyberattacks. In the assessment of their likelihood and impact, they score above average, whereas issues related to geopolitics score around average. This is still sufficient for companies to pay particular attention to it, given the macroeconomic headwind coming from protracted uncertainty or the possible non-linear consequences of risk events. The list of questions to be tackled is long but, as usual when dealing with uncertainty, it is about how can uncertainty be monitored, what is my exposure and how can I manage it. The monitoring is the easier task of the three, considering that there is no lack of research on geopolitical topics. High quality, media-based uncertainty indicators are even available for free on the internet.

“The tensions between the US and Turkey in the summer last year turned out to be short-lived, but they remind us of the necessity to define in advance how to cope with short-lived versus sustained increases in geopolitical risk. “ William De Vijlder, Group Chief Economist, BNP Paribas

Direct and indirect exposure

Assessing the exposure is already more complex, in particular when dealing with indirect exposure. Moreover, one should not only assess where geopolitical threats or events can impact your business, but also, and this is the more difficult question, to which extent.

Direct exposure is about: does geopolitical uncertainty influence how and where I produce (which commodities, which intermediate inputs, how complex a global value chain); does it influence the markets into which I sell; does it influence my financing costs, my access to financing, the use of my cash-flow, the repatriation of foreign profits?

When analysing indirect exposure, the questions ultimately are the same, but the channels are different, more complex and hence challenging to assess. Globalisation has enabled companies to broaden their customer base and lower their cost base, but, with a slight exaggeration, it implies that anything can hit them anywhere. When the US and China are negotiating on trade, it can end up impacting third party countries when it leads to trade diversion (the innocent bystander syndrome). There can be political contagion with unrest in one country spreading to other countries which suffer from similar problems. Financial markets can act as an accelerator or a channel of transmission. The increasingly harsh tone between the US and Turkey in the summer of last year unnerved international investors and contributed to the significant weakening of the Turkish lira. It also raised concerns about financial contagion to other emerging market currencies. Eventually, the tensions turned out to be short-lived, but they remind us of the necessity to define in advance how to cope with short-lived versus sustained increases in geopolitical risk.

Accepting or avoiding the exposure

“Coping with” can mean to just accept it as a fact of life, to build a robust strategy which takes uncertainty explicitly into account or to simply avoid the exposure. Accepting the exposure could make sense if, all in all, the financial impact of risk events would be rather limited. The cost of protracted uncertainty can be taken into account by using a sufficiently high return on investment target before committing money.

Avoiding the exposure could be justified if the trade-off between return and (tail) risk is unattractive, if it would trigger a disproportionate attention by shareholders or creditors, if attractive alternatives to grow the business are available, etc. ‘Avoiding’ could also mean ‘waiting to decide on an investment’ but this raises the question of the opportunity cost of waiting. If a company was contemplating to build a factory in the UK before the Brexit referendum, is there an opportunity cost to waiting for the type of Brexit when alternative locations, outside the UK, are available? When time is money, waiting ends up being expensive.

The question of building a robust strategy is the more interesting and challenging one. It starts from the observation that we are (or need to become) active in a country (e.g. because it is a huge market or because it is key to remain competitive) but that this could increase the exposure to geopolitical risk. In designing a robust strategy, different scenarios are analysed and eventually, the chosen approach should do well under a multitude of environments, without being optimal in any specific one, simply because, in deciding under uncertainty, we are (by construction) not in a position to anticipate which one will materialise. Ongoing geopolitical risk monitoring will allow to plan for corrective action if need be as time goes by.