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José Carles and Carlos Cuesta

This chapter covers the discipline of the treatment of executory contracts under Spanish insolvency law and the main drivers behind recent reforms in the area. With reference to the treatment of executory contracts, hybrid pre-insolvency procedures do not have immediate consequences on the ongoing contractual obligations between the insolvent company and the counterparty. Therefore, the ‘business as usual’ approach applies in this period, although creditors’ rights to initiate or continue enforcement actions against the debtor may be limited under certain circumstances. The opening of formal insolvency proceedings in Spain does not affect the validity of executory contracts. This is in line with the general aim of preservation of companies under the Spanish system and the principle of continuation of the business activity performed by companies after the commencement of the procedure. The chapter goes on to investigate the enforceability of remedies agreed by the parties in solvent times during corporate insolvency procedures. The final sections discuss options for reform and the drivers behind most recent attempts to change Spanish insolvency law in the area. Recent modifications to the Spanish Insolvency Act (those after 2003), as well as the ones expected in the short term, do not include relevant new provisions regarding the specific regime of executory contracts. Nevertheless, the fact that Spanish Law provides, since 2009, for new hybrid pre-insolvency proceedings (to which the specific regime for executory contracts for insolvent businesses does not apply) indicates that the Spanish system believes in a ‘business as usual’ rule under insolvency situations in order to achieve its main goal: the survival of Spanish businesses.