Key points
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 English Court has, for only the second time, made a compensation order under the Company Directors' Disqualification Act 1986 against a disqualified director.
Background
In Hunt v Singh, the Court referred to the Supreme Court's landmark decision in BTI v Sequana (see our alert) in deciding when the directors' duty to creditors arose.
Background
Marylebone Warwick Balfour Management Limited (the Company), entered a tax avoidance scheme between 2002 and 2010 which the directors, on professional advice, believed to be valid.
Companies are under increasing pressure to examine their ESG policies, particularly after the recent COP26 conference. The UK's commitment to achieving net-zero emissions by 2050 has intensified the ESG focus.
What is ESG?
ESG, or Environmental, Social and Corporate Governance, is a term used to describe a set of standards that measures a business' environmental and social impact.
Why is ESG important in a distressed restructuring?
In the recent case of Re JD Group Ltd in liquidation; Bhatia v Purkiss (as liquidator of JD Group Ltd) a company director appealed a decision that he was liable for VAT fraud.
Background
Mr Bhatia was the sole director of a company trading in mobile phones. He was sent a HMRC notice explaining the risks of mobile phone trading and liability for involvement in VAT fraud.
The Dutch Supreme Court ruled that "setting aside" or replacing the board is not a requirement to qualify as a de facto director. De facto directors are not required to manage the company instead of, and to the exclusion of, the formal directors.
Background
Under Dutch law, as a matter of principle, only the company (ie a Dutch B.V. or N.V.) is liable for its debts. The directors of the company are in principle not liable.
Under German law, company directors have a statutory duty to file for insolvency once the company has become insolvent or over-indebted. Company directors can be held personally liable for any payments they make after that point of time unless they prove that they exercised reasonable care, skill and diligence. After the German Federal Court of Justice (Bundesgerichtshof) clarified that standard terms and conditions of German D&O insurance contracts cover this directors’ liability, many D&O insurers have tried to find new ways to avoid their coverage.
The Secretary of State for Business, Energy and Industrial Strategy (SoS) presented winding up petitions against Fabcourt Developments Limited, Clarkson Murphy Partners Limited, Hall Contracting Services Limited and Sentor Solutions Commercial Ltd (the Companies).
The SoS may present a petition for a company to be wound up where it appears that it is expedient in the public interest and if the court thinks it just and equitable to do so.
Background
On 7 December 2022, the European Commission published its proposal for a directive harmonising certain aspects of insolvency law (the Insolvency Directive).
The Insolvency Directive seeks to offer more certainty and create a common minimum standard of insolvency regimes across member states, encouraging more effective cross-border investment.
It aims to harmonise three key areas of EU insolvency law (the Insolvency Directive).
Aims law:
the recovery of assets
the efficiency of proceedings