In a recent case before the Federal Court of Justice, an insolvency administrator was found to have neglected his duties of investigation in a particularly serious and reproachable manner.
Decision
The insolvency administrator had contested the offsetting of an investment subsidy by the creditor bank to balance the debtor’s accounts.
The focus of the decision was whether the insolvency administrator had made the contestation claim within the statutory limitation period. In Germany, this is usually three years and starts:
The Court of Cassation has considered whether company insolvency proceedings may be extended to a managing director and shareholder who has made payments to himself from the company's bank account.
Background
The October 2023 insolvency statistics show that company insolvencies have risen by 17.6% from October 2022 to October 2023 and by 56.7% since pre-pandemic levels in October 2019. Total insolvencies have reached the highest levels since 2009.
The English High Court has clarified the test it will apply on an application for a moratorium. A company can get the benefit of a moratorium without applying to court but a court application is necessary if a winding up petition has already been presented or the company is an overseas company.
Background
Das Oberlandesgericht (OLG) Düsseldorf hat mit einem aktuellen Urteil (27.07.2023 – 12 U 59/22) seine eigene Rechtsprechung bestätigt, nach der die regulären Anforderungskriterien an die Überschuldungsprüfung bei Start-ups nicht uneingeschränkt Anwendung finden können.
Hintergrund – Kriterien der Überschuldungsprüfung
The Federal Court of Justice has lowered the threshold for the approval of an insolvency plan by the insolvency court.
Background
The English Court has, for only the second time, made a compensation order under the Company Directors' Disqualification Act 1986 against a disqualified director.
Background
The UK Jurisdiction Taskforce has launched a new public consultation on the treatment of digital assets in English insolvency law.
Crypto assets are 'property'
In November 2019, the UKJT published its seminal legal statement on the status of crypto assets and smart contracts. Since then, there has been widespread acceptance that crypto assets are 'property' for the purposes of English law. And the Law Commission has recently proposed a new, third category of personal property rights to capture digital assets.
Impact on insolvency law
On 15 November 2023, the Temporary Act on Transparency of Expedited Liquidation (Turbo Liquidation Act) will enter into force. It aims to increase trust in the expedited liquidation procedure by improving its transparency, the legal protection of creditors and combatting the abuse of the procedure.
Background
The opening of safeguard or reorganisation proceedings does not automatically terminate a current agreement notwithstanding any contractual clause providing for termination.
Termination by a lessor