La Cour d'appel de Luxembourg décide que le jugement de clôture de faillite pour insuffisance d'actifs ne met pas un terme aux opérations de faillite, mais en suspend les opérations.
La survie d'une société au terme des opérations de faillite diffère selon l'actif récupéré par le curateur.
Les sociétés commerciales dont les opérations sont clôturées pour insuffisance d'actif restent inscrites au registre de commerce.
Legislation implementing the EU Bank Recovery and Resolution Directive ("BRRD") in Netherlands law and facilitating the application of the EU Single Resolution Mechanism Regulation ("SRM Regulation") was approved by the Upper Chamber of the Netherlands parliament on 10 November 2015 and is expected to enter into force before the end of this year. The new law – the "European Framework for the Recovery and Resolution of Credit Institutions and Investment Firms Implementation Act" – will be referred to below as the "Implementation Act".
Where a court has ordered the winding-up of a company, a shareholder may be able to have the winding up terminated under section 482 of the Corporations Act 2001.
Relevant factors
The power of the court to terminate a winding-up is discretionary. Relevant factors to be considered, which are not exhaustive, include the following:
The number of companies declared bankrupt in Luxembourg has increased tremendously since 2009, reaching a record number of 1,026 in 2012. According to the Luxembourg authorities, this situation is mainly due to the current legislation, which is obsolete and no longer suited to modern financial difficulties.
In 2009, the Luxembourg government decided that the creation of appropriate tools for companies in financial distress was extremely important, especially in the post-crisis period, and decided to tackle this subject.
On 27 May 2015, the bill for the Act implementing the European framework for the recovery and resolution of banks and investment firms (the "Implementation Act") and the explanatory memorandum thereto (the "Explanatory Memorandum") were published. The purpose of the Implementation Act is to implement the Bank Recovery and Resolution Directive ("BRRD") and to facilitate the application of the Single Resolution Mechanism Regulation ("SRMR").
If a director can exercise a right of set-off against a company in liquidation for a debt owed to the director or for a liability of the company to the director (which may be unascertained in amount or contingent), it may help to cancel out or significantly reduce the director’s liability to the company for insolvent trading.
In family law property settlement proceedings, if a spouse is declared bankrupt, the trustee in bankruptcy may join the proceedings in an effort to recover funds from the property pool to pay the bankrupt’s creditors.
While in theory this approach sounds sensible, it may not always be prudent for a trustee in bankruptcy to seek to be joined or consent to being joined. In particular, recent trends suggest that trustees are being very cautious about getting involved in proceedings between a bankrupt and their spouse.
The involvement of a trustee in bankruptcy
On 20 May 2015, after a three-year legislative process, a recast version of the European Insolvency Regulation (EIR) was adopted. For the most part, it will be applicable in approximately two years' time. The most important changes likely to affect the European restructuring landscape are a broader scope of application and new rules on COMI. The recast regulation also introduces a framework for group insolvency proceedings.
Under Dutch law each partner of a partnership (other than a limited partner) is severally liable for liabilities of the partnership. The Dutch Supreme Court has recently rendered two important judgments with respect to the liability of partners in a partnership and the consequences thereof if the partnership is declared bankrupt.