In effect, this institution allows creditors, by way of capitalizing all or part of their debts, to displace the original holders in the ownership of the shares and to emerge with liabilities in accordance with the company's true payment capacity, in a context in which only those creditors with a vocation to pay are satisfied based on the procedural and financial reference of the valuation of the company in progress.

Thus, the business reorganization agreement may provide for a clause whereby, if the liabilities are greater than the valuation of the going concern, all liabilities in excess of the aforementioned reference value are discharged or extinguished.

For this purpose, (i) an expert report prepared under the terms of Article 226 of the General Code of the Process must be attached to the agreement, that is to say, it must come from a professional and be executed in accordance with an accepted and duly supported methodology. On the other hand, (ii) the agreement with discharge must be approved by a qualified majority that corresponds to 60% of the votes from creditors with payment vocation, according to the aforementioned valuation, discounting the votes of internal and related parties. Consequently, the usual requirement of plurality of categories of creditors does not apply in this context.

It is also required (iii) that the discharge does not affect the credit rights of maintenance, pension, labor and secured creditors, which constitutes an economic floor for the operation, so that tax debts are perfectly dischargeable. Finally (iv) the agreement must provide for the cancellation of the participation rights of shareholders or partners without any type of consideration, that is to say, there is a total displacement in the property in favor of the creditor or creditors that assume such position by partial or total capitalization of the debts in their favor.

As can be seen, as would occur in a liquidation, the creditors who are willing to pay are satisfied and the original owners lose their property, but the company is saved and restarted with liabilities proportional to its payment capacity. The company thus reconfigured can continue to operate and the possibility remains open for the displaced owners to reacquire it at market conditions.

La entrada Descarga de pasivos. Ley 2437 de 2024 4/n se publicó primero en PolaníaTello.

With the capitalization of liabilities, the legislator sought to provide creditors with a tool that would allow them to convert their credits into risk bonds, through issues contained in the reorganization agreement or in the reform thereof.

In turn, they represent for the debtor a mechanism to save the company by allowing it to understand that its liabilities are covered when creditors agree to convert or capitalize their liabilities into bonds that remain ordinary, or that have the possibility of being converted into shares once a term or condition is reached, thus contributing to lighten its financial burden, since it reduces the cost of financing compared to the costs it would have to assume if it were to seek new indebtedness in the financial market.

In addition, the issuer has the power to discharge this debt from liabilities, when the bonds are converted into shares, since, from that moment on, they are recorded in equity.

Thus, there are many benefits of issuing bonds as a financing mechanism for companies, including tax advantages, the possibility of excluding or deducting interest payments from taxes and the definitive solution to some of the agency problems.

Notwithstanding that Law 1116 of 2006 already established the possibility of capitalization of claims in the reorganization agreement with the consent of each creditor, including labor creditors, Law 2437 of 2024 gave a new opportunity to the risk bonds, seeing in it a mechanism for financial relief and business reactivation, It allows granting its holders all kinds of economic privileges, including special voting rights in certain materials of the company, establishing as the only condition that all the rules of the game and prerogatives granted to the creditors are approved in the reorganization agreement, observing the law and the bylaws.

So far there have been few practical cases in which debtors in insolvency have made use of the issuance of risk bonds as a mechanism of relief and business reactivation in their reorganization agreements, so after knowing the benefits of this figure, I propose that, as users and advisors, we build solutions that from our scope make it attractive and allow us to make the most of this really attractive mechanism for debtors and creditors, among which I highlight the following:

1. A secondary market for risk bonds should be created, allowing the exclusive negotiation of these instruments between companies in insolvency.

2. Consider offering differential interest or yields to creditors that decide to capitalize their liabilities through the issuance of bonds, with respect to the interest offered to the rest of the creditors within the framework of the reorganization agreement.

3. The granting of collateral guarantees to bondholders on the issuer's assets as backing for their securities, not necessarily on fixed assets, but on other types of assets, such as current inventory, trademarks or intangible assets, should be promoted.

4. Considering that the creditor would obtain profits and yields with respect to its bonds, it is not necessary that, in consideration for this improvement, the debtor should be granted an equity consideration different from the one implicitly provided by the capitalization, i.e., to reduce its liabilities due to the capitalization.

5. Those bonds that contemplate political rights, in the exercise of them, allow the capitalizing creditors to make real contributions in kind to the company, either through knowledge and experience.

Together with the investment banks that are dedicated to buying loans in insolvency processes, the creation of a market in which, after the creditors agree to capitalize their liabilities, they can sell them to the banks, which would then trade them in a secondary market. This would expand the market and investment options, while promoting capitalization and stimulating the market and the return of capital flows to the economy.

La entrada Ley 2437 de 2024 y la capitalización de pasivos mediante la emisión de bonos de riesgo se publicó primero en PolaníaTello.

The causes for the initiation of these liquidation processes correspond to deficiencies in the provision of health services, noncompliance with solvency margins, debts with suppliers, and lack of attention to users, among others.

These liquidation processes affect the provision of health services, directly affecting user care and having a domino effect on providers, who are involved in large sums of money without having clarity as to the margin of recovery of these obligations.

The processes of forced administrative intervention of the EPS have special regulations. For those EPS of a public nature, Decree Law 254 of 200 and Law 1105 of 2006 apply. While for private EPS, the process is governed by Decree 663 of 1993, the Organic Statute of the Financial System and Decree 2555 of 2010. The purpose of this type of process is the prompt realization of the assets and the orderly and prompt payment of the external liabilities until the assets of the entity are exhausted, preserving equality among equal creditors, without prejudice to the privileges of exclusion and preference to certain types of credits.

Through Decree 2265 of 2017, the general operating conditions of ADRES, the Resources Administrator of the Social Security Health System, were established with the purpose of managing and protecting the proper use of the resources of the general health system and the compensation process was regulated, through which ADRES determines and recognizes the Capitation Payment Unit, the resources for the payment of incapacities and the resources to finance health promotion activities. The result of this compensation process is: (i) the amount in favor of the EPS, (ii) the amount in favor of ADRES by the EPS and (iii) the amount to be transferred by ADRES to the EPS in case of deficit, so these resources cannot be considered as the EPS's own and have the character of public resources.

The Constitutional Court, through different rulings: (i) Ruling C-1040 of 2003, (ii) Ruling C-549 of 2004 and (iii) Ruling C-262 of 2013, has specified the fiscal nature of these resources as they are intended solely to cover health insurance.

Now, by means of Article 12 of Law 1797 of 2016, special rules were established for the priority of credits in the compulsory liquidation processes: (a) Labor debts, (b) Debts recognized to Health Service Provider Institutions, (c) National and municipal tax debts, (d) Debts with pledge or mortgage guarantee and Unsecured debts This rule indicates that before applying the priority of credits, it is necessary that the liquidator covers the resources owed to ADRES, so it is a creditor with super privilege.

Thus, the regulation excludes from the liquidation estate the resources owed to ADRES, and the liquidator has the obligation to cover these amounts before attending to the liabilities according to the order of payment or priority.

In order to comply with the previous regulation, through Resolution 574 of 2017, obligations were established for the liquidators related to the restitution of these resources to ADRES, and the need to make the reserves of the financial resources before constituting the liquidation mass. For this, the liquidator has a maximum term of six months, in which he/she must identify the resources that belong to ADRES, verify all the transfer and compensation declarations, submit a draft schedule, among others.

Finally, in this avalanche of liquidation processes, it is necessary that both the liquidators and the creditors take into account the nature of the resources in favor of ADRES and the priority in the attention of these obligations. In order for the providers to find the appropriate way to recognize their obligations and to avoid a catastrophe for the provision of health services, where the most affected will be the users.

La entrada La Adres en los procesos de liquidación forzosa se publicó primero en PolaníaTello.

In a recent decision, dated March 27, 2024, the Superintendence of Corporations had the opportunity to reiterate its line of decision according to which this alteration of the priority for financing is a different assumption from the one regulated by the first paragraph of the mentioned rule, which allows the modification of the order of payments due to other type of advantages, for which a series of requirements must be exhausted, such as the agreement having obtained a majority of 60% of votes in favor. The decision adopted reaffirms that actual or potential financing cannot be conditioned on qualified majorities. It would be frankly unreasonable for access to fresh resources -again, the main problem of the debtor in insolvency proceedings- to be held hostage by reluctant, opportunistic or possibly interested creditors in the liquidation (holdout problem). This pure and simple financing does not require judicial authorization, but if it is intended to provide a guarantee, the intervention of the insolvency judge is required (Article 17 of Law 1116 of 2006).

The next step was taken by Decree 1749 of 2011, today included in the Sole Decree 1074 of 2015, articles 2.2.2.2.14.2.1 and following. It deals with the financing of the insolvent party in the context of insolvency of group of companies. This regulation facilitates that companies of the same group, including those immersed, in turn, in bankruptcy proceedings, provide resources to others in identical procedural situation. This type of operation is heavily intervened, unlike the one described above; it requires the express authorization of the judge and nomination of the promoter or liquidator of the candidate lender. The judge must look after the interests of all parties involved and the operation must seek to ensure the survival of the borrower, or increase the value of its assets or of the insolvency estate. According to these rules, it is feasible for a company in insolvency to grant pure and simple financing to another company of the same group, to provide a guarantee on its own assets in favor of the company in need of resources, or to extend a personal guarantee for its benefit, always with judicial authorization.

The third regulatory milestone was brought by the emergency regulation of 2020, now substantially included in Law 2437 of 2024. It is a regime very similar to the bankruptcy financing regime of the US system.Debtor in Possession -DIP- FinancingThe rules contained in Article 4 of the above-mentioned statute facilitate the granting of guarantees on free assets of the debtor, or on assets subject to other security interests, either secondarily or by displacing them. These rules, contained in Article 4 of the aforementioned statute, facilitate the granting of security over free assets of the debtor, or over assets subject to other securities, either in the second degree or displacing the original secured creditor altogether, provided that reasonable protection is granted to the debtor's claim. The latter is extremely useful, for example, in the presence of over-collateralized creditors, since it permits the release of valuable assets by court order for the procurement of new resources.

La entrada Financiar al deudor en concurso se publicó primero en PolaníaTello.

This procedure is provided for in Article 7 of Law 2437 of 2024, which substantially took over Article 9 of Decree 560 of 2020 and, as in the superseded rule, defended its effectiveness to the issuance of two additional instruments: (i) a regulation for the chambers of commerce, which must be adopted by Confecámaras and approved by the Superintendency of Companies, and (ii) a regulatory decree that develops the expedited judicial validation of the recovery agreement. Neither of the two have been issued as of the date of publication of this entry.

In force Decree 560 of 2020, this figure was developed by Decree 842 of the same year regarding: the subjects of the procedure (art. 3); the publicity of the admission to the procedure (art. 6); the voting of the agreement and its effects (art. 7); the expeditious judicial validation of the agreement (art. 11); and the applicability of arbitration and other alternative dispute resolution mechanisms (arts. 12 and 13). It is to be expected that this regulation will be taken up again in the new normative instrument to be issued.

The regulations for the chambers of commerce that were approved at the time were responsible for regulating the mediator (composition of the list, powers, duties, termination, etc.); the actual mediation process; the work of the mediator in the event of judicial validation; arbitration and the fees applicable to the mechanism. As in the previous case, it is expected that the new regulations will substantially reflect the provisions of the regulations in force during the sanitary emergency and its extensions.

The PRE is a totally non-judicialized procedure, without prejudice to the possibility of validating the agreement reached before the competent judge, and it allows both the subjects that can be subject to its procedure under Law 1116 of 2006, as well as those expressly excluded from that insolvency statute. This implies a considerable widening of the subjective scope of validity in the sense that all business organizations (regardless of their associative form) that have not been assigned a special recovery procedure by law may opt for this procedure, which could be accessed, for example, by companies in the health sector, public utilities companies and companies in the education industry.

In effect, the repealed Decree 842 of 2020 stated: "They may resort to the corporate recovery procedure provided for in Legislative Decree 560. April 15, 2020, natural persons traders, legal persons excluded and not excluded from the corporate insolvency regime established in Law 1116 of 2006, branches of foreign companies and autonomous patrimonies affected to the performance of business activities, provided that they are not compulsorily subject to a special business recovery regime or do not have a specific recovery regime. The above, without prejudice of the administrative measures of taking possession or intervention to manage or liquidate that may be adopted by the inspection, surveillance and control authorities, in exercise of their legal powers.“.

While the emergency regulations were in force, there was an interesting debate on the existence or non-existence of the business recovery agreement when one or few creditors were able to join the mediation process, far from the majority required for its judicial validation. In at least one case that I knew first hand, the mediator refrained from attesting to the agreement reached with two creditors because, in his opinion, the lack of an approving majority implied its non-existence, thus confusing the out-of-court agreement with the judicial one. In reality the agreement exists even if it is consented to by a single creditor with few votes (relative effect of the contracts), only that it could not be successfully submitted to the judicial validation procedure due to lack of majorities, but that is a totally different matter. One thing is that the agreement exists among those who concurred to it, and another that its effects can be extended to absentees and dissidents if the requirements foreseen for that purpose are met.

La entrada Ley 2437 de 2024, sobre insolvencia empresarial 3/n se publicó primero en PolaníaTello.

Uno de sus más salientes defectos como administrador fue lo que hoy se conoce como microgerencia acompañada de los sesgos Dunning-Kruger y de confirmación: hacía que todo tipo de decisión (desde la invasión a Inglaterra y la guerra de Flandes, hasta  los planos del Escorial y el inventario de su magnífica biblioteca) pasara por su escritorio y, además, pensaba que se las sabía todas y tendía a desestimar los elementos de juicio y las opiniones de sus propios asesores que no encajaran en sus prejuicios.

Si bien depuró una eficiente organización administrativa, estructurada a partir de Consejos o comités de expertos, y la profesionalizó alejando de los cargos de poder a la nobleza en favor de letrados (funcionarios profesionales expertos en leyes, finanzas y otras disciplinas) que hacían predecibles las decisiones y las basaban en antecedentes, posible gracias a la organización del primer archivo moderno (el de Simancas), lo cierto es que centralizó de tal manera la toma de decisiones que a esa forma de gestión se achacan hoy sus grandes fracasos (Felipe de España, Henry Kamen, 1998).

A pesar de dirigir el más poderoso aparato económico, que incluía los virreinatos del Nuevo Mundo, Felipe -que también recibió de Carlos V una balanza comercial deficitaria y un pesado sobreendeudamiento- tuvo que enfrentar no una ni dos sino cuatro bancarrotas de la Corona, situaciones que sorteó con mayor o menor fortuna, pero en todo caso a costos muy altos. Todo endeudamiento posterior a cada quiebra era más caro que el anterior, y tuvo que emplear todas las palancas de reorganización financiera (moratoria, bonos del tesoro -juros-, quitas, nuevas financiaciones, etc.) para reacomodar el gigantesco sistema administrativo.

Si uno de los mejores administradores de todos los tiempos, a cargo de la más fabulosa fuente de ingresos de que se haya tenido noticia, tuvo que enfrentar varias insolvencias, los administradores de empresas de todo tamaño deben entender (i) que ningún negocio está exento de problemas que comprometan su viabilidad; (ii) que deben tomar distancia, conocer sus límites y oír a los expertos; y (iii) que las herramientas legales están ahí para usarlas, sin miedo. Que no haga carrera el tópico según el cual el mejor concurso de acreedores es el que se evita. Se trata de una herramienta cuyo uso oportuno y razonable puede revertir eficazmente situaciones críticas.

La entrada Lecciones de Felipe II se publicó primero en PolaníaTello.

This is the atavistic problem that Noguera Barreneche synthesized in his 1932 lectures as follows: "The law does not order but for the coming - it cannot be otherwise -; but in that unique field in which its abstract prescriptions are concretized and developed, it is necessary for jurisprudence to distinguish two kinds of facts, viz: (a) some relatively new, without roots of necessary and sufficient legal causation in the past, and (b) others which, already obeying a pre-existing social rule, coexist with the validity of the second rule, totally or partially opposed to the first, and must be subjected to it or free from its influence depending on whether or not the new law has received the investiture of the so-called retroactive character. The first of these two kinds of future events constitutes the future of the laws - the plain and ordinary future - to which the first part of article 2 of the Code of Napoleon refers, and the second, the legal past to which the final part of the same refers: the past of the only possible legal retroactivity, which is not really, as explained above, but a future activity".

In the words of the Constitutional Court: “Obviously, if a legal situation has been completely consolidated under the old law, there is no conflict of laws, nor is there a conflict of laws when the facts or situations that must be regulated are generated during the validity of the new law. The need to establish which law should govern a certain matter arises when a fact is born under the old law but its effects or consequences are produced under the new law, or when a legal fact is carried out under the old law, but the new law establishes new conditions for the recognition of its effects."(C-619 of 2001).

The same ruling recalls that, in procedural matters, the rule is that ".The laws concerning the substantiation and rituality of the trials prevail over the previous ones from the moment they are to take effect.

"However, the appeals filed, the taking of evidence, the hearings convened, the proceedings initiated, the terms that have begun to run, the incidents in progress and the notifications that are being served, shall be governed by the laws in force when the appeals were filed, the evidence was ordered, the hearings or proceedings were initiated, the terms began to run, the incidents were promoted or the notifications began to be served.

"Jurisdiction to prosecute the proceeding shall be governed by the law in force at the time of the formulation of the claim with which it is promoted, unless the law eliminates such authority"(Law 153 of 1887, article 40, as amended by article 624 CGP).

In 2020, the Superintendency of Corporations resolved the situation in a clear and direct manner when it began to base decisions taken in ongoing proceedings on the recently issued extraordinary rules, where it was feasible to do so. This happened, for example, with the disappeared power to pay small claims without judicial authorization, and with the possibility of establishing simultaneous payments to creditors of different classes, just to mention a couple of cases.

Consequently, we should expect that article 2 of Law 2437 of 2024, which regulates the expeditious access to reorganization mechanisms, will be observed for the qualification of applications for admission pending resolution by December 12, 2024, the date on which the new statute came into force, and not only for applications after that date. If so, the undesirable rejection orders will be reduced, because the admission orders will require the supports missing in the qualification of the application; contrary to what is usually thought, a company that has not complied with the documentary requirements should be put under judicial scrutiny, and not leave its creditors and other interested parties in the lurch.

The same can be expected with respect to, for example, financial relief and corporate reactivation mechanisms (simultaneous payments to creditors of different classes, capitalization of liabilities, discharge of liabilities and sustainable debt covenants), which may be incorporated into reorganization agreements that were just being negotiated on December 12, 2024, as well as it should be feasible to request authorization for bankruptcy financing operations under the rules contained in Article 4 of the new law.

La entrada Ley 2437 de 2024, sobre insolvencia empresarial 2/n se publicó primero en PolaníaTello.

According to the rule of effectiveness provided for in Article 21, ".This law is effective as of its enactment and publication."The presidential sanction occurred on December 12, 2024, as reported by the Administrative Department of the Presidency of the Republic itself on its official website.¹. As for publication, although the text was included in the Official Gazette No. 52,968 of December 12, the truth is that it was only visible on December 27. According to this, what should be taken as the date of publication to establish the temporal validity of the new law?

For the Constitutional Court, nothing should intervene between the promulgation and the access to effective knowledge of the norm: "In the Colombian legal system, the promulgation of the law is equivalent to its publication, which, although it is not a requirement for its validity, it is a requirement for its validity and enforceability, that is to say, for it to bind the associates. To this extent, the constitutional jurisprudence has related the concepts of promulgation of the law -which is materialized through its publication in the Official Gazette- and of its legal effectiveness or validity, the latter being understood as the force or capacity to produce legal effects of a norm, since, as previously stated, the legal mandates will only be enforceable against the associates -and therefore they will only be affected by its legal consequences- after its publication, therefore a law, as long as it has not been published, is unenforceable and does not produce legal effects."².

Of course, it is blatantly unconstitutional that a law is inserted in the Official Gazette on a certain date, but on that same date its contents are not available to the citizens. It does not make sense that a law has been in force since December 12 when the effective publication only occurred fifteen days later, on the 27th. In a recent decision of the Council of State, dated September 2024, issued in the framework of a Public Enforcement Action for similar facts, the National Printing Office of Colombia, administrator of the Official Gazette, was ordered to do the following:

"FOURTH: Consequently, ORDER the National Printing Office to take the pertinent administrative steps so that, within a maximum term of 3 months, in all cases, the date of the Official Gazette is the same as the date of the uploading of the act or regulation and that it also corresponds to the date of its publication in the official website of the entity."³.

According to this, what happened with Law 2437 of 2024 could fall into the field of contempt. For practical purposes, as a term a quo The date of effectiveness must be understood as December 12, 2024, unless, due to constitutional relevance, the debate on the effective access to the knowledge of the norm is generated, in which surely the considerations will be different.

(ii) Content

Law 2437 of 2024 includes substantially the provisions of Legislative Decrees 560 and 772 of 2020. However, it is worth taking into account what was expressly left aside in the new regulation, which comes, in general, to complement the corporate insolvency statute made up by Law 1116 of 2006, Decree 1074 of 2015 and its complementary rules.

Regarding the regulation of the then Decree 560 of 2020, the following rules were not rescued: Article 1, on purpose and scope of application; Article 3, on flexibility of payment of small claims; Article 7, on moratorium of agreements in execution; Article 15, on suspension of certain rules; Article 16, on effectiveness; numeral 3 of paragraph 1 of Article 8, on deferral of administration expenses; Title III, on tax aspects.

As for what was regulated by the then Decree 772 of 2020, the rules that did not pass the legislator's filter were: Article 1, on purpose and scope of application; Article 7, on strengthening the list of assistants of justice; Article 8, on deferral of administration expenses; Article 13, on mechanisms for setting and paying fees to liquidators; Article 15, on tax aspects; Article 16; Article 17, on validity.

Consequently, having made the aforementioned discards, Law 2437 of 2024 deals with:

^{Cfr. https://www.presidencia.gov.co/prensa/Paginas/Sancionada-la-Ley-2437-de-2024-nuevo-marco-para-la-insolvencia-empresarial-241216.aspx}

^{2. Constitutional Court, Decision C-932 of 2006, Vid. https://www.corteconstitucional.gov.co/relatoria/2006/C-932-06.htm#:~:text=La%20vigencia%20de%20la%20ley%20conlleva%20su%20%E2%80%9Ceficacia%20jur%C3%ADdica%E2%80%9D%2C,en%20vigor%E2%80%9D%5B14%5D}

^{3. Council of State, Contentious-Administrative Chamber, Fifth Section, Judgment of September 26, 2024, Rad. 2024-01064, Vid. https://www.consejodeestado.gov.co/wp-content/uploads/2024/Cuml%20IMp%20Nal.pdf}

La entrada Ley 2437 de 2024, sobre insolvencia empresarial 1/n se publicó primero en PolaníaTello.

1. Finally, for construction companies and all types of companies, parafiscal contributions cannot be confused with contributions to the Social Security System. First Class credits include the "and related labor costs, i.e., salaries, vacations, interest, severance payments and parafiscal taxes, among others."Although some compensation funds provide medical services, this fact does not convert the debts in their favor into contributions to the Social Security Health System regulated by Article 32 of Law 1429 of 2010 as excluded from the reorganizable liabilities.

2. The obligations of the reorganized entity, such as the obligation to transfer the right of ownership ("..."), are not subject to the reorganization agreement.notarization") of housing units, parking lots, warehouses, etc., in favor of prospective purchasers ").must be adjusted to the completion and culmination of the legal transaction agreed upon for the acquisition of the property."In this way, money obligations are rated and graded, not those that constitute the development of the company's business itself.

3. Withholdings in guarantee that are usually made by builders or developers to their contractors to ensure the attention of eventualities derived from the execution of their respective contracts, constitute reorganizable liabilities because "...".there is no express rule obliging the debtor to exclude withholding tax credits from reorganizable liabilities"This decision is particularly relevant because it involves a change in the tax law, unlike what happens with the withholdings referred to in Article 32 of Law 1429 of 2010. This decision is particularly relevant because it implies a change of position The Office's decision regarding what had been resolved in the corporate reorganization processes of Urbanizadora David Puyana and Spiwak Compañía Edificadora.

4. Obligations corresponding to installments paid by homebuyers "...".shall be considered as second class privileged credits, under the terms of Article 10 of Decree 2610 of 1979, provided that the promise of contract has been validly executed.". It thus reiterated the extension of the privilege in favor of the promisor-buyers of housing provided for in the 1979 rule only in cases of liquidation, to the recovery context, as it had been resolved in the case of Constructora de Obras (Space building). As a development of this rule, if the promisor-buyer assigns its contractual position in the promise of sale, the balance owed by the builder for any concept is not privileged and must be graduated in Fifth Class.

La entrada El concurso del constructor se publicó primero en PolaníaTello.

“Todos los que asistimos a este congreso y quienes lo siguen de forma virtual, interactuamos cotidianamente con un sistema, el de insolvencia empresarial; este sistema está conformado de manera difusa por (i) normas, (ii) instituciones, y (iii) sujetos; y estos componentes, a su vez, se desagregan en otros. Normas constitucionales, legales y reglamentarias; instituciones judiciales, administrativas y privadas; sujetos deudores, acreedores, “operadores” -abogados, jueces, mediadores, árbitros-, y terceros interesados.

Pues bien, el problema de la jurisdicción es transversal. Tiene que ver con normas, instituciones y sujetos. El problema de la adjudicación de los asuntos mercantiles -y el concurso de acreedores es uno de los más complejos y antiguos asuntos mercantiles- se fue resolviendo en la Edad Media a medida que se sentaban las bases del derecho mercantil y del Mercado mismo en el que habría de gestarse el capitalismo moderno, en los contextos de las ferias del centro de Europa, a través de la designación de jueces que fueran independientes no solo respecto de las partes en litigio, sino también respecto del poder político (Prodi, 2024).

No eran “jueces-funcionarios” ni tenían competencias territoriales, sino particulares investidos de facultades jurisdiccionales transitorias por las autoridades de las mismas ferias, jueces itinerantes, especializados, de extracción de la propia práctica mercantil, no abogados expertos en enrevesados procedimientos.

De esa manera, lenta y progresiva, se fueron asentando los usos y costumbres comerciales, de los que las codificaciones del siglo XIX son simple y regular reflejo, y no la manifestación de un legislador que todo lo sabe y que nunca ha existido. El legislador omnisciente es el “Ratón Pérez” de los abogados, uno de los mitos por los que optamos creer, una falacia naturalista en toda regla.

Entonces, la mera pertenencia del juez al aparato del Estado, independientemente de la rama del poder público, es ya una concesión en términos de “independencia”. Con ese referente histórico en claro, es posible aterrizar el debate sin el ruido de esos espectáculos de grandilocuencia que oponen el eslogan de la “separación de poderes” como un punto de honor para evitar el inicio de cualquier discusión“.

La entrada Jurisdicción concursal se publicó primero en PolaníaTello.