La Resolución de la Dirección General de los Registros y del Notariado (RDGRN) de 19 de diciembre de 2018 (BOE 28 de enero) se pronuncia de nuevo sobre la extinción registral de sociedades sin patrimonio. En esta ocasión se admite la inscripción de una escritura de disolución y liquidación de una sociedad de responsabilidad limitada en la que el liquidador declaró que la sociedad carecía de activos y de acreedores, de conformidad con el balance aprobado unánimemente por los socios.

The amendment to art. 90(1)(6) of the Insolvency Act 22/2003 (abbrev. LCON) by the Public Sector (Legal Regime) Act 40/2015 was welcomed almost enthusiastically by most market agents. It was felt that the inconsistent treatment bestowed on pledges of future claims (hereinafter, ‘PFC’) would finally be a thing of the past. I myself am not altogether convinced that this is the case, being able to envisage more than one way an insolvency judge, averse to this type of security interests, can dampen the aforementioned enthusiasm by way of a not overly absurd interpretation of the new provision.

According to its Explanatory Notes, RD Act (Order in Council) 4/2014, of 7 March, adopting  urgent measures on business debt refinancing and restructuring, aims to facilitate the financial  repair and recovery of companies facing an economic crisis. To this end, a set of rules varying in  scope and significance have been laid down, which I here discuss with regards to the treatment  reserved to loans granted under refinancing agreements - as provided by the Spanish Insolvency  Act (IA) - and their signatory creditors.

Art. 172 IA determines  the  pronouncements the at-fault classification ruling must contain, judicial pronouncements that constitute true civil penalties.¹

Thus, after classifying the insolvency proceedings as at-fault, the people affected by the classification and the accomplices, on whom the orders will fall, have to be determined. Then, arts. 172 and 172 bis IA establish that the judgment must order:

1. The sale of productive units of a company subject to insolvency proceedings has become common practice in the Commercial Courts, especially those of Catalonia, which have the express support of the Directorate General for Industry of the Regional Government of Catalonia.

This procedural solution allows companies to continue as a going concern, ensuring the maintenance of jobs and avoiding the destruction of the business landscape.

Shareholders who fail to intervene to stem the losses in a company they control may be held personally liable for the company’s debts if it is subsequently liquidated, according to the Supreme Court.

Under Hungarian law, a shareholder’s liability (in a limited liability company) is usually limited to their capital contribution. The corporate ‘veil’ can only be pierced (making the shareholder personally liable for the company’s debts) in special circumstances.

Share purchase agreements often include indemnities or covenants to pay designed to protect the buyer for a period after completion where some unquantifiable liability is anticipated that will impact on the value of the company being acquired. This is particularly so in the case of unpaid tax.

When a tenant goes into liquidation and its liquidator surrenders the lease what effect does this have on any obligations to remove any alterations that the tenant has made during the term and generally reinstate?  The high court has recently decided that the terms of a surrender that released both parties from rights arising “on or after, but not before, the date of this surrender” were sufficient to release the tenant from its obligations to reinstate the premises because these obligations were future obligations.

In our Law-Now of 4 April 2012 (click here for link), we reported on the decision of the court in the case of Leisure (Norwich) II Limited v Luminar Lava Ignite Limited (in administration).  The detailed judgment has now been released, setting out the rationale for the decision and summarising the position on rents in administration generally.

The legal position on this issue is now:

In a recent case, the court held that a party to a settlement agreement (in this case a broker) cannot restrict the indemnity it is providing so that the indemnity is not payable if the insured goes into administration, or liquidation, or undergoes some other insolvency event. The decision is important on its own facts. But it does also raise questions about the legitimacy of other clauses in insurance contracts which depend on whether or not the insured or reinsured has entered into any kind of insolvency event.