FIGHTING RECESSION AT THE EXPENSE OF ACCESS TO JUSTICE - THE CASE OF CROATIAN FINANCIAL OPERATIONS AND PRE-BANKRUPTCY SETTLEMENTS ACT

Abstract

It is hard to remember when the last time was that one legal document raised as
much controversy among legal and economic experts, entrepreneurs and wider
public as it is the case with the Act on Financial Operations and Pre-Bankruptcy
Settlements (AFOPS). As stated by the Croatian Government at the time of its
delivery, the primary aim of the pre-bankruptcy (or insolvency) settlement
proceedings was to help troubled companies to revitalize their businesses, keep
jobs and to help creditors to recover their claims in a larger proportion than it
would be possible if standard bankruptcy proceedings were applied to troubled
companies. The fact that two different organs, one professional and one juridical
have been conducting pre-bankruptcy settlement proceedings in different stages
gives rise to different questions in relation to the right to a fair trial and access
to courts as guaranteed by the European Convention for Protection of Human
Rights and its related case law. In particular, we shall discuss whether PBS
committees constituted “tribunals” in the Conventional context and whether
European Convention allows the prior intervention of professional bodies in
disputes over civil rights and obligations. Last, but not least, we need to check
the powers and the role of commercial courts in confi rming the settlement
agreements, bearing in mind that only if the access to a court with full jurisdiction
is ensured, the lawfulness of the procedure is provided and secured