Director’s liability is a recurring issue in both the Austrian and German courts. One reason is that, when a company goes into bankruptcy, its receivers and creditors tend to look for alternative sources of funds, especially when the directors are covered by D&O Insurance.

When disputes between shareholders escalate, one of the shareholders may be tempted to transfer the business to a new entity. Can the shareholder be stopped if he succeeds in obtaining a majority vote?

THE FACTS:

Summary

In a very recent avoidance law decision the Austrian Supreme Court held that shareholders of Austrian limited liability companies, even if they are only small minority shareholders, can under certain circumstances be under a specific duty to investigate the company’s financial situation because of their statutory information and book inspection rights. If they fail to do so, they may have to return received payments if challenged by the insolvency administrator (Supreme Court file no. 3 Ob 117/18d).

Legal framework

The Austrian Insolvency Code provides for the possibility to challenge certain disadvantageous transactions carried out by the debtor after material insolvency has occurred, especially if the creditor knew or should have known of its debtor's material insolvency. This risk of legal actions being contested is of particularly high relevance for shareholders who are also creditors of the debtor company, as the Austrian Supreme Court recently decided that shareholders' information rights would result in an increased level of due diligence.

Chartered accountants' obligation to comment on overindebtedness
Liability of chartered accountants
Comment

Introduction

Affected companies

Companies without management

Majority shareholders

Consequences for breach

ALBANIA AUSTRIA BOSNIA & HERZEGOVINA BULGARIA CROATIA CZECH REPUBLIC HUNGARY POLAND ROMANIA SERBIA SLOVAK REPUBLIC SLOVENIA UKRAINE 1 TO OUR READERS Welcome to the 6th edition of the DRInsider, the quarterly Newsletter of the Wolf Theiss Dispute Resolution Practice Group. We are happy to once again provide you with interesting news covering the various CEE/SEE jurisdictions in which we practice.

In three similar decisions of 17 March 2015[1] the Austrian Supreme Court (“OGH”) clarified how insolvency proceedings may affect an already pending arbitration.

Introduction

As of 1 January 2015, the Au;trian criminal procedure code ("StPO") ctifferentiates between      suspects     (Verdachtiger)      and

subJect    to    loose    and    unsubstantiated

Welcome to our guide for directors and prospective directors of subsidiary companies in Austria.