Relevant recitals dealing with new financing begin with Recital 48 of the PRD which indicates
that the more formal type of rescue procedure envisaged by the Preventive Restructuring Directive (“PRD”) – namely that which culminates in the confirmation of a rescue
plan by either a judicial or administrative authority is “particularly necessary” where
there are provisions on new financing included in the plan. No detail on the nature of
the kind of new financing which is envisaged is provided. (Note there is no mention of
interim financing at this point). Read together with other provisions which require that
confirmation of a restructuring plan by a judicial or administrative authority is
necessary, for example the provisions in Article 11 on Cross Class cram down indicate
that the Directive embodies an approach which allows Member States to pursue number
of tracks from which to choose in terms of implementing the Directive. These
approaches can range from introducing a robust restructuring process complete with a
blanket stay, protection of, and perhaps priority for, new and interim financing; cross
class cram down and court approval or a less robust out of court type of procedure
which relies on agreement and negotiation. Both types are currently present across the
member states of the EU.