Use the Lexology Navigator tol to compare the answers in this article with those from other jurisdictions.
Enforcement
Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Structuring a lending transaction
The conundrum evolves
The right to set-off claims and obligations in insolvency proceedings is an important tool for creditors in order to protect themselves against the insolvency risk of a contractual counterparty. This article gives a short overview of the rules for set-off in insolvency proceedings in Austria and certain CEE jurisdictions not taking into account special provisions for close-out netting and similar transactions.
Austria
Set-off in insolvency proceedings
Introduction
As of 1 January 2015, the Au;trian criminal procedure code ("StPO") ctifferentiates between suspects (Verdachtiger) and
subJect to loose and unsubstantiated
Insolvency lawyers frequently encounter problems in relation to goods that are purchased under a reservation of title and the assertion of resulting rights to separate these goods from the debtor's estate. In particular, the obligation to provide notice of withdrawal from the contract regularly raises issues. A recent example of Austrian case law demonstrates that the absence of an express notice of withdrawal can also be problematic.
As can be read in the media, reorganization proceedings were opened on the assets of the Kärntner Landes- und Hypothekenbank-Holding.
The reason for the application for initiation of reorganization proceedings is the liability by virtue of law of the applicant for all current and future liabilities of the bad bank HETA Asset Resolution AG, universal successor of Hypo Alpe-Adria-Bank International AG.
The Austrian “Bundesgesetz über Sanierungsmaßnahmen für die HYPO ALPE-ADRIA-BANK INTERNATIONAL AG” (HaaSanG), published on 31 July 2014 in the Austrian Federal Law Gazette and implemented in August 2014 by the Austrian government, paved the way for the establishment of Heta Asset Resolution AG (Heta) as a wind-down vehicle to assume and manage large parts of the assets of the failed Austrian bank, Hypo Alpe-Adria Bank international AG (HAA).
The first bank resolution under the new European bank resolution regime is currently taking place in Austria: the Austrian Financial Market Authority (FMA), the official government regulator for banks, funds and financial institutions, is busy with the resolution of HETA Asset Resolution AG (HETA - formerly Hypo Alpe-Adria Bank International AG).