Abdoul Mtoka

Founding Partner

LL.M. in International Business Law,
Faculty of Law,
UniversitéLibre de Bruxelles
LL.M. in Business law,Law faculty,
Université Paul Cézanne (Aix-en-Provence)

Elliot Njejimana

Associate

LL.B., Law Faculty,

Université Lumière de Bujumbura

In insolvency Law, a Commercial Investigation Chamber is a specialized organ within the commercial court which is responsible for detecting the clues that might reveal the difficulties of a company in order to ensure both to the extent possible, the protection of the rights of the creditors but also allow the continuity of the business. So, it has for mission to get and receive any information allowing to assess the economic and financial situation of the trader or the company in difficulty and its evolution.

  1. The functions and missions of a Commercial Investigation Chamber

All the elements that a chamber needs to determine that a company is in trouble are at the level of the registry of the Commercial Court. The Registrar collects the data and informs the Chamber of Investigation when there is presence of elements that can alert on the financial situation of the trader. The information is transmitted every fifteenth day of each month. It is for the House to consider these warning signals and to appreciate the economic and financial situation of the trader in trouble.

If the president of the Chamber finds one or more warning signals, it can immediately open a case which he entrusts the instruction to a magistrate of career. The latter will have to measure if the turn signals are sufficiently serious or revealing a difficult situation of the debtor.

After reviewing the file, the Chamber of investigation inquiry may decide:

  • Either close the case;
  • Or decide to suspend the case until we see the evolution of the company because the indices of difficulty has disappeared at the time of the survey;
  • Either send the file to the Prosecutor when it considers that the trader or the business is in a State of bankruptcy;
  • Or entrust a secret examination of the case to a professional judge when signals are worrisome.

 

In the latter case, the trader or officer of a corporation shall be convened in order to allow the judge to gather information and evidence it deems relevant to its investigation. His first appearance takes place 15 days from the date he received the summons, he often appears with his lawyer who will assist him and defend his rights. The judge will also hear any person whom he considers necessary hearing.

At the end of his investigation, the judge makes a report including the Stagecoaches completed and his conclusions. This report is sent to the Commercial Investigation Chamber.

Thus, the Chamber may decide after reviewing the report to:

  • Close the case;
  • Refer the matter to the President of the commercial court before the arrangement procedure can continue;
  • Refer the matter to the President of the commercial court before the bankruptcy process is open.

 

  1. The procedure within a Commercial Investigation Chamber

The procedure followed by the chamber presents some characters critical to the mission entrusted to it by the legislator. This procedure has the distinction of being confidential. Indeed, investigating the case takes place behind closed doors, and the older is searchable only by the debtor or officer of the company and its Board. Any third party is excluded.

In addition, judges working on the case are held to professional secrecy and cannot disclose any information about a folder in which Commercial Investigation Chamber is responsible. The purpose of this confidentiality is to ensure that the disclosed material is not detrimental to the debtor.

  1. The goal sought by the legislator

In fact, the commercial investigation chamber in the commercial courts have nothing like a spontaneous generation. They were created in Belgium by commercial courts in order to identify companies in difficulties and their problems before they fall in bankruptcy. The legislator just endorsed a Praetorian practice and thus, facilitated the detection of warning signals about the identification of firms in difficulty.

Indeed, this identification allows to avoid a systemic crisis and encourages the development of economic activities in a healthy environment. The absence or dysfunction of such commercial investigation chamber rooms contains the ultimate risk of paralysis or asphyxiation of economic activities.

This is why, it is essential that such commercial investigation chambers are functional, at least at the heart of the economic activities of the country (the capital Bujumbura), in order to fight properly and efficiently against the insolvency of operational companies in financial difficulties which risk to make fall by the domino effect, other companies in a better economic health.

About

Trust Juris Chambers is a full service corporate and business law firm with a variety of clients including local and international corporations, private businesses, non-governmental and international organisations. Our main areas of practice are corporate and commercial, litigation and arbitration, employment, tax, intellectual property, competition, telecommunications, energy and mining.

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