Besteht für deutsche Unternehmen das Risiko, erhaltene Zahlungen zurückzahlen zu müssen?

Mit der Zunahme grenzüberschreitender Geschäftstätigkeit zwischen Deutschland einerseits und Mittel- und Osteuropa (CEE) andererseits ist das Risiko der Rückforderung von Zahlungen, die ein Unternehmen von einem nun insolventen Geschäftspartner erhalten hat, weiterhin von wesentlichem Belang für deutsche Unternehmen.

1. The CMS Law-Now article “Arbitration agreement does not prevent winding up petition” updated the position in England & Wales following the Privy Council decision in Sian Participation Corporation (In Liquidation) v Halimeda International Ltd [2024] UKPC 16 (“Sian”).

Deal structure matters, particularly in bankruptcy. The Third Circuit recently ruled that a creditor’s right to future royalty payments in a non-executory contract could be discharged in the counterparty-debtor’s bankruptcy. The decision highlights the importance of properly structuring M&A, earn-out, and royalty-based transactions to ensure creditors receive the benefit of their bargain — even (or especially) if their counterparty later encounters financial distress.

Background

Following are this week’s summaries of the Court of Appeal for Ontario for the week of April 15, 2024.

In early February, a Delaware bankruptcy judge set new precedent by granting a creditors’ committee derivative standing to pursue breach of fiduciary duty claims against a Delaware LLC’s members and officers. At least three prior Delaware Bankruptcy Court decisions had held that creditors were barred from pursuing such derivative claims by operation of Delaware state law, specifically under the Delaware Limited Liability Company Act (the “DLLCA”).

A Massachusetts Bankruptcy Court’s recent appellate decision in Blumsack v. Harrington (In re Blumsack) leaves the door open for those employed in the cannabis industry to seek bankruptcy relief where certain conditions are met.

It is a rare occasion that one can be assured with certainty that, if they file a motion with a bankruptcy court, it will be granted. But, in the Third Circuit, that is exactly what will happen if a creditor or other party in interest moves for an examiner to be appointed under Section 1104(c) of the Bankruptcy Code. Once considered to be within the discretion of a bankruptcy court “as is appropriate,” the appointment of an examiner is now guaranteed if the statutory predicates are fulfilled according to the Third Circuit Court of Appeals.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of January 15, 2024.

Good afternoon. Following are this week’s summaries of the Court of Appeal for Ontario for the week of December 18, 2023.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of September 4, 2023.

In AssessNet Inc. v. Ferro Estate, the Court set aside an order dismissing the action, finding that the summary judgment motion judge had erred in determining the issue of discoverability of a claim against a trustee in bankruptcy.

Torgersrud v Lightstone is a family law decision where the Court dismissed an appeal from an order setting aside a marriage contract entered into in Quebec in 1988.