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    The German Separate Banks Act (Trennbankengesetz) a solution for the “too big to fail / too interconnected to fail” problem?
    2013-05-28

    A. Bill of the “Law on shielding credit institutions and financial groups against risks and planning their restructuring and winding-up”

    Filed under:
    Germany, Banking, Capital Markets, Insolvency & Restructuring, CMS Germany, Liquidation, Federal Financial Supervisory Authority (Germany)
    Authors:
    Alexandra Möller
    Location:
    Germany
    Firm:
    CMS Germany
    Enforcement of “double security” in insolvency
    2012-05-31

    The Federal Court of Justice (Bundesgerichtshof, BGH) pronounced on double securities in its eagerly anticipated judgment of 1 December 2011 (IX ZR 11/11). The practice was controversial even before the Act for the Modernisation of Limited Liability Company Law and for the Prevention of Abuse (Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen, MoMiG) came into force. “Double security” arises where security is provided over a creditor‘s claim both by the company itself and by its shareholders.

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Litigation, CMS Germany, Shareholder, Security (finance), Limited liability company
    Authors:
    Dr. Georg Lauster , Tina Stiehler
    Location:
    Germany
    Firm:
    CMS Germany
    Debt-equity swap – Legal “restructuring” of a restructuring instrument
    2012-05-31

    On 27 October 2011, the German parliament adopted the Law for Further Facilitation of the Restructuring of Businesses (Gesetz zur Erleichterung der Sanierung von Unternehmen, ESUG), which entered into force on 1 March 2012. In particular, legislators have increased the importance of debtequity swaps as part of this reform. Significant practical obstacles that previously often caused debt-equity transactions to fail have now been removed.

    Previous legal framework

    Filed under:
    Germany, Banking, Capital Markets, Insolvency & Restructuring, CMS Germany, Shareholder, Debt, Articles of association, Bundestag
    Authors:
    André Frischemeier , Dr. Philipp Schäfer
    Location:
    Germany
    Firm:
    CMS Germany
    Purchase of certificates: is a bank required to disclose a commission agreement between the issuer and the bank?
    2012-11-27

    In four judgments of 26 June 2012, case refs.: XI ZR 259 / 11, XI ZR 316 / 11, XI ZR 355 / 10 and XI ZR 356 / 10, the Federal Court of Justice (BGH) has again stated its position on the question of when there is a duty to disclose commission. In all four cases the investors purchased certificates from the same defendant bank to invest different amounts and these certificates turned out to be largely worthless following the insolvency of the issuer (Lehman Brothers Treasury Co. B.V.) and the guarantor (Lehman Brothers Holdings Inc.) in September 2008.

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Litigation, CMS Germany, Security (finance), Lehman Brothers
    Authors:
    Dr. Herbert Wiehe , Sarvar Azadegan
    Location:
    Germany
    Firm:
    CMS Germany
    Claims under loans made by the shareholder’s family members will not be given a subordinate ranking in insolvency proceedings
    2011-11-24

    The German Federal Court of Justice (Bundesgerichtshof - BGH) in its decision of 17 February 2011 (IX ZR 131/10) has been dealing with the issue which – since the Act to Modernise the Law Governing Private Limited Companies and to Combat Abuses (Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbrauchen - MoMiG) came into effect – is being controversially discussed as to whether loans by family members (in particular the shareholder’s siblings, spouse and children) in insolvency proceedings will be given subordinate ranking.

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Litigation, CMS Germany, Shareholder
    Authors:
    Dr. Marc Seibold
    Location:
    Germany
    Firm:
    CMS Germany
    Using a binding letter of comfort to avoid risks of voidable preference
    2011-11-24

    The risks facing a lending bank if the borrower becomes insolvent are often twofold. Not only are outstanding repayments in jeopardy, but, in the case of debtor`s insolvency, there is also a risk of voidable preference (Insolvenzanfechtung), where the insolvency administrator may challenge repayments already received and loan collateral granted before the insolvency filing.

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Litigation, CMS Germany, Surety, Debtor
    Location:
    Germany
    Firm:
    CMS Germany
    2011 year-end German law update
    2012-01-10

    While the members of the Eurozone are still struggling to find an adequate answer to the sovereign debt crisis and the stock markets are on a roller-coaster ride, the German economy is still doing remarkably well and continues to attract foreign investors from all over the world, notably China.

    Filed under:
    Germany, Banking, Capital Markets, Corporate Finance/M&A, Insolvency & Restructuring, Tax, White Collar Crime, Gibson Dunn & Crutcher LLP
    Location:
    Germany
    Firm:
    Gibson Dunn & Crutcher LLP
    Rescue instruments for German credit and financial institutions – BaFin may interfere before grounds for insolvency arise.
    2010-09-29

    Crises of credit and financial institutions are currently the order of the day.

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Mayer Brown, Federal Financial Supervisory Authority (Germany)
    Location:
    Germany
    Firm:
    Mayer Brown
    New restructuring/reorganization and transfer procedures for endangered German-based credit institutions.
    2010-10-08

    On 13 July 2010 Germany's Federal Ministry of Justice and Finance published a discussion draft of an Act for the Restructuring and Orderly Liquidation of Credit Institutions, for the Establishment of a Restructuring Fund for Credit Institutions and for the Extension of the Limitation (Restructuring Act).

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Squire Patton Boggs, Credit (finance), Liquidation, Endangered species
    Location:
    Germany
    Firm:
    Squire Patton Boggs
    Law on restricting of financial institutions passed
    2010-11-18

    The German parliament (Deutscher Bundestag) has recently passed a law on the restructuring and dissolution of distressed financial institutions, establishing a sector-wide restructuring fund and extending the statute of limitations for the liability board members (Restructuring Act).

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Freshfields Bruckhaus Deringer, Statute of limitations, Board of directors, Distressed securities, Bundestag
    Location:
    Germany
    Firm:
    Freshfields Bruckhaus Deringer

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