The Insolvency Review: Saudi Arabia
Insolvency law, policy and procedure
In August 2018, a new Bankruptcy Law was created as a balanced modern means to protect both debtors and creditors in Saudi Arabia. It was also part of a series of Saudi judiciary reforms through the issuance of new commercial laws and regulations such as the new Companies Law of 2015 and the amended law of Civil Procedures. One of the country's targets is to attract foreign investors by modernising Saudi law to match international laws and business practice. As a result of the economic crisis the country has undergone during the past few years because of low oil prices, it was necessary to create a Bankruptcy Law for the benefit of all parties doing business in Saudi Arabia. Historically, declarations of bankruptcy are very rare in Saudi. In most instances, such a declaration would require the imprisonment of the bankrupted individual for five to seven years, not as a penalty but to ensure that the bankruptcy claim was not fraudulent.
i Statutory framework and substantive law
The two main documents in relation to bankruptcy in Saudi Arabia are the following:
- Bankruptcy Law, dated 28/05/1439H (corresponding to 13/2/2018G) issued by Royal Decree No. M05/1439 and Cabinet Decision No. 264/1439, published in the Official Gazette on 06/06/1439H (corresponding to 21/2/2018G); and
- Bankruptcy Implementing Regulations, adopted by Cabinet Decision No. 622/1439, published in Official Gazette on 4 September 2018 and entered into force on 14 September 2018.
The new Bankruptcy Law focuses on the following main insolvency procedures:
- preventative settlement;
- preventative settlement for small debtors;
- financial restructuring;
- financial restructuring for small debtors;
- voluntary liquidation;
- administrative liquidation; and
- liquidation for small debtors.
One of the major new elements in the 2018 Law that was not covered by previous laws is the creation of a clear priority of debts, with a higher priority debt being paid before a lower priority debt, as follows:
- in-kind guaranteed debts (real estate property mortgage and collateral);
- certain types of 'guaranteed finance' obtained in preventive settlement and financial restructuring procedures;
- wages due to employees equivalent to 30 days' remuneration;
- family living allowance ordered by the family court;
- expenses necessary for the continuation of the debtor's usual business activity during the bankruptcy procedure;
- non-guaranteed debts; and
- non-guaranteed government fees, subscriptions, taxes and dues as specified in the Regulations.
Another major element of the 2018 law is the creation of a Bankruptcy Committee under the Ministry of Commerce and Investment (MOCI). The Committee is responsible, among other things, for creating a register to record all bankruptcy applications, which is open to public inspection. However, the information on the register is not detailed enough and many aspects of the procedure remain confidential, such as the nature and amount of debts.
The Implementing Regulations of the Bankruptcy Law organise the insolvency procedures and supplement the statute. They provide additional detail on matters such as the threshold for small debtors, which is two million Saudi riyals (any debts above this amount should not follow the procedures for small debtors). The Regulations also give clear rules for the method of resignation and dismissal of the trustees, required documents for the initial petition and each stage of the application, notification and announcement procedures, the method of documentation and access to information about the bankruptcy procedures.
Under Article 4 of the Bankruptcy Law, those to whom the Law and its Implementing Regulations apply are the following:
- individuals and corporations carrying on commercial, professional or for-profit businesses in Saudi Arabia; and
- non-Saudi investors who have assets in Saudi Arabia or carry on commercial, professional or for-profit business through a licensed entity.
The Law has taken into consideration that certain transactions might be entered into with an intent to defraud or harm creditors, conceal a debtor's assets or harm stockholders, all of which are prohibited and punishable. The court may set aside actions or transactions that are found to meet one of these criteria and order the recovery of any debtor's assets discharged under a spacious transaction and the payment of compensation to the harmed creditors. Violations of the Law are subject to strict penalties that include imprisonment for a term not exceeding five years or a fine not exceeding five million Saudi riyals, or both, and restrictions on carrying on, managing or co-founding certain businesses.
The prevailing attitude regarding the treatment of businesses in financial difficulties is to avoid liquidation by introducing preventative settlement and financial restructuring. Liquidation of a business is used as a last resort, which can be effected in a separate procedure to the bankruptcy procedure. Efforts are made to keep failing businesses in operation, as described by one Saudi lawyer: 'Distressed or potentially distressed investors will have the opportunity to re-evaluate their financials, fulfil the pending obligations to creditors and continue their operations with eased and sufficient procedures.'
The purposes of the Bankruptcy Law and its Implementing Regulations are the following (as listed under Article 5 of the Law):
- to reduce the financial difficulties on bankrupt or distressed debtors by encouraging them to fulfil their obligations;
- to allow debtors to reorganise their financials in order to continue their business operations aiming to support and develop the economy;
- to protect the creditors' rights;
- to reduce the costs and time frame of the bankruptcy procedures;
- to encourage small and medium businesses to invest in the commercial market; and
- to promote transparency and predictability.
iii Insolvency procedures
The aim of this procedure is to facilitate a debtor in agreeing terms with its creditors without losing control of the management of the business. The debtor would be able to continue running its business. Only the debtor can file for this procedure under the Law. The claims of the creditors taking legal action against the debtors would be suspended for between 90 and 180 days. This procedure is aimed at those who will be able to pay off their debts, but need additional time to do so.
The debtor must provide a proposal to the creditors to repay the debt within a reasonable period, who will therefore vote on the proposal. For the procedure to be approved, creditors who represent two-thirds of the value of the same class of debt must vote on the financial proposal and support it. Failure to get the necessary number of votes would impede the preventative settlement and the procedure would be declined by the court. If a court declines one of the bankruptcy procedures, it does not mean that the debtor cannot refile and the court may order the commencement of another bankruptcy procedure it finds suitable.
The debtor must request the court for the suspension of the claims of the creditors upon application for a preventative settlement. This is unlike the other two insolvency procedures that automatically suspend the claims of the creditors upon application of the procedure.
Once the court approves of the procedure, the debtor must perform its contractual obligations as declared under the settlement documents. Some of the debtor's duties during this period include providing information to the bankruptcy register, such as the court's decisions and extensions. If it is in the interests of the debtor's business activity, the debtor may terminate a contract to which it is a party by submitting a petition for termination to the court under Article 37 of the Implementing Regulations.
There are special arrangements for a preventative settlement for small debtors, although they are very similar to the regular procedure for preventative settlement.
The aim of this procedure is to facilitate a debtor in agreeing terms with its creditors regarding the financial restructuring of its business under the supervision of a financial restructuring adviser or bankruptcy trustee, who must be duly licensed to carry out such a role.
The Bankruptcy Committee has been given the authority to issue licences to financial restructuring advisers and bankruptcy trustees who can be a licensed auditor or a lawyer. One of the main requirements for obtaining such a licence is having the necessary qualifications in finance and auditing. The Bankruptcy Committee has organised number of training programmes to qualify interested professionals to be licensed as advisers or bankruptcy trustees.
Unlike preventative settlement, a debtor loses full control over the business and must operate it under the guidance of a financial restructuring officer or bankruptcy trustee. Any debtor, creditor or related third party, such as a government authority, can file for financial restructuring.
A preventative settlement should not last longer than 180 days. However, there is no limit to the duration of a financial restructuring procedure, which can last for years, so long as the restructuring plan is approved. The debtor must provide a proposal to the creditors to repay the debt within a certain period, such as five or seven years with a grace period. The creditors will vote on the proposal. In addition, creditors comprising two-thirds of the same class of debt will have to vote on the approval of the financial restructuring plan.
Another effect of an application for financial restructuring is the suspension of the creditors' legal claims or court proceedings from the time the application is made until the request is either rejected or approved by the court. This protects the debtor from creditors making any claims or taking legal action, such as foreclosure of assets or closure of business throughout this period.
Once the court approves the financial restructuring plan, or proposal, it will appoint a trustee (the financial restructuring officer) who will, among other things, supervise the debtor's activity during the financial restructuring to ensure fairness of the procedure and its execution. The debtor will also need to obtain the trustee's approval before undertaking any of a large number of specified actions that may have an impact on his asset and liability position. Once the court approves the financial structuring, it applies to all the creditors.
There are special arrangements for the financial restructuring of small debtors, but they are very similar to the regular procedure for financial restructuring.
This is the process of bringing a business to an end because of its inability to pay back its debts and distributing its assets to the creditors. Given the alternative forms of insolvency procedures provided by the new Bankruptcy Law, liquidation should be considered as the last resort. The liquidation procedure can be initiated by a debtor, creditors or a related third party, such as a competent government authority. The process can be initiated for debtors that are either insolvent or bankrupt. The claims of the creditors will automatically be suspended upon applying for liquidation. The time frame for liquidation does not have a limit and may take from several months to several years. However, once a liquidation request has been approved, it is the duty of the liquidator is to finalise the liquidation within five years as required under Article 205 of the Companies Law.
As with financial restructuring, the debtor no longer has full control over its business. A liquidation trustee is appointed, who assumes the management of the debtor's assets. Other duties of the trustee include liquidating the debtor's assets, listing debts, and distributing the proceeds according to the debt's priority.
The assets of the debtor will be sold and the proceeds from the sale are distributed by the liquidation trustee to the creditors under the supervision of the court. The Bankruptcy Law and Implementing Regulations do not specify whether the sale of assets is through a public auction or not.
Articles 1 and 167 of the Bankruptcy Law define administrative liquidation as the process of selling the liquidation assets that are not expected to cover the expenses of the liquidation procedure. This process may be requested by a debtor or the competent authority, in the event that the debtor's business is in distress, is bankrupt or the assets will not cover the expected expenses of the liquidation process. If this is the case, the government will intervene to manage the liquidation process rather than an independent liquidator.
A committee is appointed by the court to manage the liquidation procedure, which should be finalised within 12 months of the date of commencement of the administrative liquidation. The committee may extend this period, if needed, but for no more than 90 days.
iv Starting proceedings
Different players can file for different proceedings: only a debtor can apply for a preventative settlement or commence a proceeding for administrative liquidation, whereas a debtor, creditors or a third party such as a government authority can file for administrative liquidation.
Proceedings are commenced through an application to the court for the appropriate procedure. This must be done online, via a link on the Ministry of Justice website and the applicant must provide the requested information.
If the application is approved, a date for a court hearing is determined within five days. The hearing must be held within 40 days of the date the request was submitted. The court may commence the procedure, reject it or postpone the hearing. If all requested documents are provided and approved, then the court can commence the procedure. If the documents are not complete, the court will give the applicant 21 days to submit the missing or correct documents. The court will either announce its approval for commencement of the procedure or reject it. It may also order the commencement of a more suitable bankruptcy procedure when appropriate.
After commencement of the procedure, a trustee will be appointed for financial restructuring and liquidation. The creation of a plan, voting among the creditors, shareholders of the company, and other steps will then take place.
All demands or legal actions by the creditors will be stopped automatically, except in the case of preventative settlement, when a separate request to stop the claims must be submitted with the preventative settlement request.
v Control of insolvency proceedings
Insolvency proceedings are under the control of the commercial courts and the Bankruptcy Committee, each of which has a distinct role in the bankruptcy procedure. It is up to the court to decide whether to approve or reject the commencement of any of the procedures. Applications are submitted directly to the courts. However, it is the Bankruptcy Committee that undertakes the tasks necessary for the organisation and effectiveness of the procedures.
One of the major substantive clauses of the new Bankruptcy Law, which did not exist in the previous law, is the setting up of the Bankruptcy Committee. It is an independent, specialised and administrative body that is responsible for overseeing all bankruptcy matters and reports directly to the MOCI. As per Article 9 of the Law, the Committee is composed of at least five competent and authorised persons nominated by the MOCI. The members of the Committee will serve a term of three years, which can be renewed. The Committee's tasks include, but are not limited to, the following:
- setting up a special bankruptcy register;
- issuing licences for bankruptcy experts and trustees who assist in the insolvency procedure;
- issuing implementing regulations governing the framework of the licensed bankruptcy experts and trustees; and
- coordinating the relevant liquidation procedures and inspecting the ongoing bankruptcy procedures.
The court has the most powerful and significant role in the proceedings, as it determines whether proceedings are approved or rejected. According to Article 6 of the Bankruptcy Law: 'The Court shall issue judgments and decisions necessary for the application of the procedures provided for in the Law, supervising its implementation, adjudicating the disputes arising therefrom and imposing the prescribed penalties in the system.'
Since introduction, the commercial court and bankruptcy trustees have been required to interpret a number of provisions of the new Bankruptcy Law:
- Claims: It is unclear whether claims must be evidenced by a final non-appealable judgment issued by an adjudicatory body in Saudi Arabia. In some cases, the bankruptcy trustees and the commercial court have only accepted claims that were evidenced by final non-appealable judgments.
- Claimed amounts: It must still be clarified whether claims must consist of funded credit lines or whether non-funded credit lines are acceptable.
- Suspension of claims: The Bankruptcy Law defines suspension of claims as 'suspending the right to initiate or continue any action, process or claim against the debtor, its assets, or its guarantees, within the specified period of time pursuant to the provisions of the Law'. Under this definition, the bankruptcy trustees and commercial court have reached different conclusions about its application to letters of credit or guarantee issued by banks. The Saudia Arabian Monetary Agency issued circular No. 41039914 on 2 February 2020 to request that banks cooperate with Bankruptcy Trustees in relation to suspension of claims.
- Secured creditors: Bankruptcy trustees have different interpretations on what constitutes secured financing, and the commercial court has not yet analysed this question.
It is clear that both the bankruptcy trustees and commercial court will play influential roles in the interpretation and application of the law.
vi Special regimes
According to Article 3 of the Bankruptcy Law, the following entities must obtain special permission from the authorised body to apply for any of the insolvency procedures:
- banking, finance and insurance companies;
- persons authorised to practise securities business;
- the financial market, and settlement and clearing companies;
- credit rating companies;
- information companies and credit records;
- telecommunications, water, electricity and gas companies;
- companies that carry out explorations of energy sources and minerals;.
- companies operating in airports, rail services, ports and others as specified in the Implementing Regulations;
- special purpose facilities; and
- any other person outlined in the Implementing Regulations.
The Law does not specify what the authorised body is for each of the above. However, we would expect that in the case of banks, for example, the authorised body would be the Saudi Arabian Monetary Authority, which regulates and supervises financial institutions in Saudi Arabia. The authorised body must give its permission within 30 days. If it fails to respond with approval within this time frame, its silence will be considered acceptance and approval. Once an entity acquires the required permission, it can apply for the appropriate insolvency procedure and proceed through the stages in the same way as the beneficiaries of the bankruptcy procedure.
The covid-19 global pandemic has already had an effect on the Saudi economy. The Saudi economy is facing obstacles because of curtailed oil production, and the non-oil private sector has also been effected. The economy is expected to contract by 4.7 per cent in 2021, though some recovery growth is anticipated in 2021.2 The Saudi Arabian economy shrank 1 per cent in the first quarter of 2020, representing the third straight quarter of contraction.3 Also, amidst the pandemic, the country is experiencing faster increases in unemployment and declines in business activity and new work.4 In June 2020, Saudi Arabia's inflation rate decreased to 0.5 per cent prior to a tripling of VAT on 1 July 2020. The 0.5 per cent inflation represents the lowest inflation rate since deflation ended, reflecting in the slowing of prices for certain goods and services as well as falling costs for many items.5
In response to the economic downturn caused by the pandemic, the Saudi Arabian government has implemented several support packages for the private sector totaling nearly US$61 billion. The packages include:
- postponement of certain government dues;
- support for the banking and SME sectors;
- allocations to ensure government dues are timely paid to the private sector; and
- a wage subsidy of up to 60 per cent for employees in the private sector
The government has also announced an injection of US$13.3 billion into the banking sector with the aim of increasing banking liquidity for provision of credit to the private sector.6
No official statistics are available regarding the number of entities that have started plenary insolvency proceedings. However, increased insolvency activity is anticipated given the covid-19 pandemic. This is supported by an article in Gulf News published in May 2020 which reports that Saudi Arabia's bankruptcy committee has received approximately 381 requests for settlement, reorganisation, and liquidation between January and mid-May 2020.7 The 2018 Bankruptcy Law should be better able to service this anticipated influx of cases in the most beneficial manner for the economy because it is designed to help businesses establish workouts or restructuring plans, which will be very necessary throughout and after the pandemic.
Plenary insolvency proceedings
Although the Law requires the setting up of a bankruptcy register, and that the information therein must be available to the public, the register does not provide a detailed level of information about proceedings. Thus, some of the examples we now discuss are current proceedings that have been commenced, while others are major bankruptcies that have taken place but have yet to be filed for in the courts.
The following are some of the most significant completed and pending plenary insolvency proceedings during the past 12 months.
i Financial restructuring of SAAD Group and AHAB Ahmad Hamad al-Gosaibi and Brothers
SAAD Group is owned by the Saudi billionaire Maan al-Sanea, who was ranked by Forbes in 2007 as one of the 100 richest people in the world, SAAD Group and another conglomerate, Ahmad Hamad al-Gosaibi and Brothers (AHAB), defaulted on loans worth billions of dollars in 2009. For the past 10 years, creditors have been chasing the company for the repayment of their debts, estimated to be between US$11 and US$16 billion, although the total amount of debt is believed to be US$22 billion.
The company, whose activities range from construction and engineering, real estate development, financial services and banking to healthcare, filed for financial restructuring in the Dammam Court under the new Law in February 2019; the court approved and appointed an independent trustee, Saleh Al-Naim. The trustee sent a notice to creditors, the majority of which are banks, announcing the beginning of the financial restructuring proceedings, and asked them to submit their claims within 90 days.
SAAD Group's filing is one of the first to be accepted under the new Law. From the reading the court judgment approving the financial restructuring application of SAAD, one can observe the following:
- The adviser or the bankruptcy trustee has to issue a list of approved and non-approved creditors to the court.
- The bankruptcy court has to issue a judgment approving the list of creditors created by the advisers or the bankruptcy trustee.
AHAB also filed for financial restructuring at the First Instance Court of Dammam, which the court approved on 19 May 2019. The Court appointed Mr Badr Al-Tamimi as trustee to oversee the activities of the business and assist in the bankruptcy procedure.
In January 2020, the Dammam Commercial Court approved more than US$7 billion of claims against AHAB out of the US$12 billion of claims alleged against the corporation. The court also approved approximately US$6.5 billion of claims against SAAD Group out of the almost US$18 billion of listed claims. Claims were approved from over 70 financial institutions in the AHAB case, which includes international banks such as Deutsche Bank and JP Morgan. Two claims totalling nearly US$3 billion against AHAB by Bahrain's The International Bank were refused; the funds at issue were raised in the international markets and transferred to AHAB.8
ii Saudi Oger
The bankruptcy case of Saudi Oger was filed by one of the creditors (National Commercial Bank) against the will of the debited company and the bankruptcy court such application and appointed a bankruptcy trustee.
There continue to be no announcements about whether Saudi Oger has started bankruptcy proceedings, but the company is expected to use the current law for assistance.
Low oil prices and state spending cuts have resulted in a slowdown in the Saudi construction sector. As one of the major players in the construction sector in Saudi Arabia, Saudi Oger has faced serious financial difficulties from this slowdown. Mismanagement of the company, as well corruption, which is often found in Saudi construction companies, have greatly contributed to the creation of this debt. The company owed medical insurance and fees to the General Organization for Social Insurance and was forced to lay off thousands of its employees.
There are currently approximately 45,000 creditor claims against Saudi Oger. The amount of debt they are suffering is reportedly more than 40 billion riyals. This amount includes nearly 22 billion riyals owed to suppliers, and 6.2 billion riyals owed to employees. Reportedly more than 6,000 people, banks and companies have approached the court to seek payment.9
It is expected that the company will file for one of the procedures of bankruptcy under the Bankruptcy Law.
iii Liquidation for Al-Mashfa Medical Center
Another industry that has suffered from cuts in government spending, unregulated competition and mismanagement is the health industry. Following several medical mistakes and shareholders disputes that have resulted in scandals at the AlMashfa Medical Center, the legitimacy of this fairly new hospital was questioned, leading to a reduction in profit.
In April 2019, one of the creditors for the hospital, a company called Takniyat Medical Services, filed for liquidation. On 31 May 2019, the Fourth Circuit at the Commercial Court of Jeddah announced the appointment of Mazen Batarji as trustee to manage the company's activities and oversee its duties until the court announces the commencement of the liquidation procedure.
The bankruptcy register does not include details regarding the number of creditors or the amount of debt, neither has any additional information on the matter been published by the media.
iv Liquidation for Ghassan Al Sulaiman Autos
The automotive industry has also suffered from a shortage of cash and unregulated competition. Following an expansion plan to distribute luxury cars, such as Bentleys and Lamborghinis – which caused a severe liquidity crunch – the legitimacy of Ghassan Autos was questioned, leading to closure of the business.
In March 2019, the owner of the business filed for liquidation. On 31 March 2019, the Fourth Circuit at the Commercial Court of Jeddah announced the appointment of Mr Mazen Batarji as trustee to manage the business's activities and oversee its duties until the court announces the commencement of the liquidation procedure. Ghassan was reportedly ordered by the Jeddah Commercial Court to sell a fleet of high-end luxury cars after filing for bankruptcy.10
The bankruptcy register does not include details regarding the number of creditors or the amount of debt, neither has any additional information on the matter been published by the media.
General principles set by the bankruptcy courts
From our review of the published bankruptcy case law can draw certain principles such as:
- the court rejected the bankruptcy application when found that the origin of the debts was not related to the main business of the applicant but rather personal debts;
- to refrain the management of the bankrupted company and give the bankruptcy trustee full authority over the company;
- to reject the bankruptcy applications if the debtor's application does not meet the minimum requirement under the law and the implementing regulations; and
- To reject the bankruptcy application filed by the creditor unless he has a confirmed debt of a final court judgment.
The number of the announced bankruptcy application published by the bankruptcy committee has increased in 2019 and the first half of 2020. The number of bankruptcy cases pending in commercial courts since the beginning of the 2019 has reached nearly 500; however, only 244 applications have been approved so far. The sources of the Ministry of Justice announced that the Commercial Court in Riyadh accounted for 73.6 per cent of the total of these cases with 368 cases, followed by the Commercial Court in Jeddah with 75 cases, then the Commercial Court in Dammam with 54 cases.
We anticipate that insolvency activity will increase during 2020 given the financial hardship presented by the pandemic. The new Bankruptcy Law will provide the projected influx of bankruptcy filers with a broader option of procedures in addition to liquidation.
The economic impact has primarily been attributed to low oil prices and lockdown measures that have disrupted economic sectors and tourism. The companies that are most likely to file for insolvency or bankruptcy proceedings will be those in the construction and building, real estate, health and medication, car and food industries.
Since the new Law and its Implementing Regulations have replaced the old laws that governed bankruptcy, it is unlikely that there will be any further legislative development in the coming year. However, we might see directives or increased consistency from the Bankruptcy Committee to deal with the areas of of uncertainty uncovered over the last year as well as any new developments or situations not provided for under the Law.
1 Adli Hammad is a partner at Hammad & Al-Mehdar Law Firm.
7 Source: https://gulfnews.com/world/gulf/saudi/saudi-arabia-bankruptcy-