Das Oberlandesgericht München hat in einem bisher unveröffentlichten Hinweisbeschluss^[1] die Rechtsauffassung des Oberlandesgerichts Celle^[2] und des Oberlandesgerichts Düsseldorfs^[3] bestätigt, dass für Ansprüche des Insolvenzverwalters gegen Geschäftsführer wegen Zahlungen trotz Insolvenzreife kein Versicherungsschutz unter einer D&O-Versicherung besteht. Daneben hat das Oberlandesgericht München auch zur Verteilung der Darlegungs- und Beweislast in Abtretungskonstellationen Stellung bezogen.

In a final ruling dated 6 March 2019 (Case ref.: 5 O 234/17), the Regional Court of Wiesbaden decided that the insolvency administrator and all insured persons are not entitled to claim insurance coverage for claims attributable to an insurance period for which the insolvency administrator has chosen not to fulfi l the D&O insurance contract.

To date, a debt waiver has been frequently used as a tool to successfully restructure German based companies in financial difficulties. A decision of the German Federal Fiscal Court (Bundesfinanzhof) published on February 8, 2017 currently limits such an option, given that it held that one of the main instruments used by tax authorities to grant relief from an otherwise taxable cancellation of debt income (CODI) in the form of the so-called Restructuring Decree (Sanierungserlass) violates fundamental constitutional rights.

In light of the UK’s cram down and director-friendly processes, in particular its scheme of arrangement model, major European economies such as France, Germany and Italy have worked hard to develop regimes that give greater emphasis to pre-insolvency alternatives. These new regimes create cram down mechanisms and encourage debtor-in-possession (DIP) financings, ultimately aiming to make restructuring plans more accessible, more efficient, and crucially more reliable; essentially more in tune with the Anglo-American approach to insolvency and restructuring.

German Federal Court of Justice decision paves the way for bond restructurings under 2009 Bonds Act.

Frank Grell is a partner at Latham & Watkins who chairs the firm’s German Restructuring and Insolvency Practice. In this interview, he reflects on several successful applications of the German Insolvency Act (Insolvenzordnung) since the law was passed in 2012 and the continued shift towards a restructuring-based approach to large corporate insolvencies.

Frank Grell is a partner at Latham & Watkins who chairs the firm’s German Restructuring and Insolvency Practice. Grell reflects on some of the major changes brought about by Germany’s 2012 Insolvency Act (Insolvenzordnung), including an increase in the rights of creditors in the proceedings over the assets of German companies, the introduction of “protective shield” proceedings and a reduction in the negative stigma previously associated with restructuring and insolvency.

The German Insolvency Code requires the management of German limited liability companies (GmbH), stock corporations (AG) and other entities without personal liability to file for the commencement of insolvency proceedings no later than three weeks after the entity has become illiquid (zahlungsunfähig) or overindebted (überschuldet).  

Restructurings have become an integral part of the reality of the German debt and equity markets.

The Federal Ministry of Justice and Consumer Protection (BMJV) is currently finalizing the law to mitigate the consequences of the COVID-19 pandemic in civil, insolvency, and criminal proceedings with extraordinary commitment. It shall be adopted less than two weeks after the beginning of the extensive restrictions on public life and the economy in Germany due to the COVID-19 pandemic.

A central element of the law is to facilitate the raising of debt capital in order to support companies in the current situation. For this purpose: