Among the many issues raised by RDL 4/2014, of 7 March (LA LEY. 524973/2014), which adopts urgent measures for the refinancing and restructuring of corporate debt, I would like to highlight that relating to the documentary form that must cover refinancing agreements and, in general, the legal acts and transactions contemplated therein. The notable impact of the contracts envisaged in the Royal Decree-Law on the debtor's assets and his relations with third parties would have merited a more careful development of the form required of them and, above all, a better tax treatment.

When analysing the extrajudicial acts and transactions, whether or not approved by the judge, relevant to the refinancing of debt, we can distinguish the following as the most relevant: firstly, the extrajudicial payment agreements with the intervention of the insolvency mediator proposed by the commercial registrar or, residually, the notary (Art. 5 bis in relation to Article 21 of Law 14/2013).

The notarial procedure should be dealt with differently here, in terms of the standardised actions and appeals against the notary's actions or refusal to act. I would merely point out that rules of procedure should at least be laid down by the DGRN.

Secondly, it should be noted that refinancing agreements without mediation are indispensable if they are based on a viability plan (Art. 5 bis 4), among other requirements. In the execution of these agreements, reductions and deferrals are provided for, whether in respect of one or several creditors, with or without collateral, as well as the alteration of contractual relations established within the framework of asset holding companies (56.1).

Article 71a provides for two types of non-cancellable agreements: those regulated in paragraph 1, for which creditors representing three-fifths of the liabilities must be gathered together. Section B) 3 expressly provides for its formalisation in a public document, which must accredit compliance with the legal requirements and incorporate the supporting documentation.

It then provides for different agreements in Article 71a(2), either individual or collective, aimed at increasing the ratio of assets to liabilities and current assets. In this case, in addition to the requirements laid down in section 71a(2), they must also be formalised in a public instrument, the content of which (para. e) differs to a lesser extent from the previous section (see section 71a(4)). It is also stipulated that the conditions laid down must be met at the time of granting, so that its effectiveness cannot be subject to postponement or suspension.

In the execution of these agreements or of those arising in court during the course of the insolvency proceedings, RDL 4/2014 (LA LEY. 524973/2014), specifically provides for the capitalisation of debt "directly or indirectly" by means of a capital increase or by issuing convertible instruments. Leaving aside its consequences in the financial, corporate and insolvency order - it is similar to an expropriiatio ex legis -, its formalisation will follow the general rules of commercial law, i.e., a notarial public deed will be required.

Thus, in order to guarantee a high level of legal certainty, the RDL envisages, apart from the higher judicial activity, three controllers -gatekeepers-: an auditor and, to a lesser extent, an independent expert, in the economic sphere, and together with them a third control of the agreements reached, this time a legal one, consisting of the notarial activity in the extrajudicial sphere.

This is because the granting of privileged effects to refinancing agreements is based on the necessary formal and material reliability of what has been adopted. It is therefore necessary, as has been indicated, to record them in a notarial deed in order to give their content the declarative, probative and enforceable value that is proper to them.

This effectiveness, in documentary terms, is reserved for the public deed. This will undoubtedly be the precise instrument when it concerns company or corporate acts, in accordance with the general rules of commercial law.

It must also be understood that in the case of those provided for in Article 71a 2 and 3, the formalisation must necessarily be made in a public deed. These documents must be understood to be authorised without regard to the economic amount of the assets or liabilities reflected in the document.

More problematic are the acts of execution. In these, the tax penalisation of the public deed as a type of document, if they are additionally registrable in a public register - real estate or movable property - often leads to a circumvention of their form in registrable transactions that are economically valuable.

The search for tax savings produces, in effect, an authentic legal engineering seeking to limit the strict terms of Law 2/1994, relating to mortgage novations, with regard to the content of a public deed modifying a previous one.

The immediate result is confusion in the documentary effectiveness achieved with the risk of losing the enforceable value of the agreements that have not been judicially approved. A rigorous and individualised analysis of the content of the agreements is therefore required in order to ensure that they are properly documented.

It should be borne in mind that the policy, which is more flexible in its form (and taxation), has important limitations in its material content. Pursuant to Article 17 of the Law on Notaries (LA LEY. 7637/1862), as amended by Law 36/2006 (LA LEY. 1689/2006), developed by Article 144 of its Regulations, drafted by RD 45/2007 (LA LEY. 122/2007), the content of the policies may only include the following acts
and contracts of a commercial and financial nature which are in the usual and ordinary course of business of at least one of the grantors, excluding all other legal acts and transactions, especially real estate.

This must be taken into account as the instrumentum does not alter the negotium and the unduly intervened policies lack the executive effect attributed to them by the Civil Procedure Act (art. 517.2.5º and 572.2) as they are not correctly documented.

On the other hand, the need to qualify the act documented in the public deed also leads to an inadequate formalisation, for the purposes of attributing enforceable value - the proof of the date and of the merely declarative points will be another matter - to the mere elevation to public deed of the framework contracts derived from the refinancing, among which are Sheets Terms, which will require specific documentary executions according to their subject matter and scope of application.

The new law is partially aware that the tax burden leads to the perverse effect of lowering the documentary efficiency required and thus the legal certainty that is the basis of the public form requirement. For this reason, it exempts from ITP /AJD tax any reductions or reductions charged to the debtor, although it does not go far enough in its approach.

On the one hand, these reductions are very often reflected in the deeds of cancellation of charges, as a cause of the remission of guarantees together with the partial payment, which entails, in most of the Autonomous Communities, their tax exemption; on the other hand, the third final provision of RDL 4/2014 (LA LEY. 524973/2014), does not include, as it should, the refinancing agreement itself or its specific executions, as exempt businesses and documented acts, for which it should have extended the scope of exemption of Law 2/1994 in the wording given by Law 41/2007 (LA LEY. 1786/2007).

The excessive tax burden, both in the constitution of guarantees and in their refinancing, is a real obstacle that leads to a real flight to other more favourable jurisdictions, especially when, as in RDL 4/2014 (LA LEY. 524973/2014), group structures are perfectly contemplated, when it is possible to articulate them in the R . EU 1346/2000, of immediate revision, sometimes forcing the law applicable to the insolvency proceedings or to the rights in rem constituted.

It is therefore criticisable, from all points of view, that proper taxation is not provided to give refinancing legal certainty at an adequate cost.