Enforcement over Shares

It has become increasingly common for a creditor, having reached the enforcement phase, to fail to get satisfaction from the debtor’s assets due to wrongdoing on part of the debtor before, during or after proceedings which have resulted in an enforceable order in favour of the creditor.
In its current wording, the Civil Procedure Code (CPC) does not ensure full protection of the creditor’s interests as it does not provide for any sanction for wrongdoing by the debtor in case of enforcement proceedings against the debtor. The creditor even faces the risk of incurring additional collection costs in spite of the proceedings in which the creditor has been awarded an order on the basis of which the enforcement proceedings are brought.
The Amending Act (The State Gazette, No 86 of 27 October 2017) to the CPC amended the provisions concerning the enforcement over shares by enabling the claimant to claim rights over a security, regardless of whether the claimant is its holder or not. Nevertheless, when enforcement proceedings over shares are brought, the options are rather limited for the creditor. The new wording of the CPC provisions has proved to be insufficient, falling short of the need for full protection of the creditor’s interests.
One of the few procedural lines of defence in such cases is to open proceedings to secure a future or an existing claim, whereby the creditor could rely on the awarded security to ensure full or partial security on the claim before the court rules on the merits of the dispute.
Typically, a debtor would undertake action to reduce or transfer his assets immediately before the enforcement begins. This causes harm to the creditors’ interests in seeking satisfaction from the assets over which the enforcement is carried out.
Where the enforcement proceedings are brought against a debtor who is a shareholder, problems would occur in practice if a non-cooperative debtor refused to deliver to the bailiff the shares which are subject to the enforcement.
The CPC makes a distinction between the distraint of physical securities and the distraint of physical registered shares. In the former case, the distraint is completed by compiling a list of the securities and seizing of the securities by the bailiff who puts them in a bank. The distraint of physical registered shares is deemed completed upon receipt of the distraint notice by the company. The same procedure applies to temporary share certificates.
If the debtor fails to deliver the shares, there is the opportunity for a duplicate to be issued and, in the event of non-performance, action is undertaken to retire the shares. Shares are retired in accordance with Article 560 of the CPC. In the course of protective proceedings, the claimant is entitled to request the court to retire the shares, cancelling the legal effect of the security and hence depriving the person holding the security wrongfully of the possibility for exercising rights to the security. The practical problem lies in the opportunity of the debtor to seek defence by challenging the request for retirement of the securities which are subject to the protective proceedings. Then the creditor will have to incur further costs as the court will instruct the creditor to ascertain his right to the security by opening new proceedings, although the creditor has obtain an enforcement order. Once the proceedings are completed and an enforceable order is issued, the creditor will have to bring further proceedings by serving a claim for a declaratory judgment.
Such an option is extremely unfavourable for the claimant because it takes more time and meanwhile the claim is not satisfied and further costs might be involved because of the possible need for further legal action.
Once the shares are retired, the claimant has the opportunity of directing the way in which the enforcement over the shares will take place (which is also the case in the event of voluntary delivery of the shares), i.e. the claimant may request the bailiff to either hold a public auction or assign the shares in lieu of a payment. The assignment of collection or in lieu of a payment is directed to the receivables from the shares, whereas when the enforcement is carried out over the shares themselves, the bailiff holds a public auction.
The procedure with regard to dematerialized securities subject to enforcement provides greater certainty to the claimant. The distraint is imposed by sending a distraint notice to the Central Depository and the distraint has effect on all property rights to the security. The debtor has little room for wrongdoing in this case because the Central Depository is obliged to provide the bailiff with information on any claims or distraints imposed in favour of other parties. After the distraint notice is received, the dematerialized securities are transferred to the bailiff for disposal, which is another proof of the higher level of protection of the claimant and his unsatisfied claim.
The conclusion is that, undoubtedly, the existing legislation should be amended to provide for a faster and effective protection of the creditor in the case of enforcement over shares.