Zugleich: Besprechung des Urteils des OLG Hamm vom 6. April 2022, 8 U 73/12
In seinem Urteil vom 6. April 2022 hat das OLG Hamm darauf erkannt, dass sechs frühere Aufsichtsratsmitglieder der 2009 insolventen Arcandor AG, ehemals Holding des Karstadt-Konzerns, der Insolvenzmasse der Arcandor AG auf rund 53,6 Mio. Euro Schadenersatz haften.
Urteilstatbestand
Background
Under Dutch law, the directors of a (private) company can be held personally liable by the trustee for the bankruptcy deficit. Liability can arise when the directors have manifestly performed their management duties improperly and if it is reasonable to assume that bankruptcy was declared as a result. Section 2:248(4) of the Dutch Civil Code (DCC) contains a list of grounds for reducing the amount of the directors’ liability.
Decision
Re Bitumina Industries Ltd (in administration); Manning and another v Neste AB and another [2022].
This was an application by joint administrators for directions on the validity of a floating charge granted to a connected party at a 'relevant time' and seemingly invalid under s245 of the Insolvency Act 1986 (the Act).
Background
While an insolvency process is not always welcomed with open arms, in fraud cases it can play a key role in uncovering frauds that might otherwise have remained concealed and may result in recoveries for victims. This is because an insolvency process paves the way for an independent investigation into the company's affairs and the directors' conduct to be carried out by an insolvency practitioner (IP).
Background
Decision
Key takeaways
The recent High Court decision in Re Nostrum Oil & Gas plc [2022] EWHC 2249 (Ch) considers a scheme of arrangement where creditors are the target of Russian sanctions.
Online claims-trading platform Xclaim Inc. came under scrutiny this past summer in the Madison Square Boys & Girls Club Inc. bankruptcy case pending in the United States Bankruptcy Court for the Southern District of New York. Since at least 2019, Xclaim has executed agreements with at least five notice and claims agent firms to synchronize their proofs of claim registers with Xclaim’s website where such claims are posted for sale.
On 11th November 2022, Mr Justice Zacaroli handed down judgment on an application for directions made by the officeholders of ten different energy supply companies (“ESC” or “ESCs”) seeking clarification on issues arising in the insolvencies of the ESCs which had not previously been the subject of judicial consideration.
In terms of quantum, the issues were valued at in excess of a hundred million pounds across the ten insolvencies and potentially many more millions of pounds on other ESC insolvencies not before the court.
Germany is experiencing a severe energy crisis due to the Ukraine conflict and its effect on the supply of natural gas. Energy intensive companies have seen a dramatic increase in energy costs, irrecoverable from consumers, causing grave financial distress in various German industries. As a result, the German government plans to modify the German Insolvency Code (InsO) on a temporary basis.
Background
Can a Company Voluntary Arrangement (“CVA”) complete, but still remain in place and bind creditors?
The simple answer is yes; but it does require (a) the terms of the CVA to be carefully drafted to allow notice of completion to be filed before the end of the CVA term; (b) compliance with the terms of the CVA, and (c) careful consideration of the position of the supervisors, creditors and company.
Insolvency practitioners (IPs) often occupy quasi-judicial offices which, among other things, require them to, assess and adjudicate on competing claims, take coercive and enforcement actions and complete potentially contentious transactions. They must discharge their legal and equitable duties whilst maintaining objectivity and, whilst recognising and appropriately balancing the interests of a diverse range of stakeholders.