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.
In three similar decisions of 17 March 2015[1] the Austrian Supreme Court (“OGH”) clarified how insolvency proceedings may affect an already pending arbitration.
By order of the Commercial Court of Vienna from 30.11.2015, bankruptcy proceedings were opened against the assets of the food chain Zielpunkt GmbH. With liabilities amounting to approximately 237 million euros, the Zielpunkt insolvency is the biggest of 2015. Zielpunkt has 229 branches in total in Austria and employs 2708 employees. The insolvency administrator is trying to sell as many branches as possible. The acquisition of Zielpunkt branches by competitors, as by the two biggest grocers REWE and Spar, however, raises competition law concerns due to the large market share.
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
Since 2000 public notices of documents and decisions in insolvency proceedings must be published in the Internet Insolvency Gazette (the Gazette) and are no longer made available on the court notice board. The Gazette plays a central role in insolvency proceedings in Austria.
Content
The Gazette contains details of insolvency edicts, court decisions on closing and reopening of proceedings for companies as well as on the distribution of available assets. The Gazette is updated Monday to Friday between 23:00 and midnight.
In ZCM Asset Holding Company (Bermuda) Ltd v AWH Fund In Liquidation JCPC, the Privy Council determined that, notwithstanding the absence of express statutory provisions permitting service out of the jurisdiction of fraudulent preference claims, such claims are to have extraterritorial effect.(1)
Sophia Rolle-Kapousouzoglou, Lennox Paton
This is an extract from the 2020 edition of the Americas Restructuring Review, published by Global Restructuring Review. The whole publication is available here.
In summary
Introduction
On October 20 2010 insolvency proceedings were opened against A-TEC Industries AG, the Austrian holding company of industrial group A-TEC. With outstanding debt of around €650 million (including contingent claims), this insolvency is set to be the third-largest insolvency in Austria to date. Claims included around €300 million of bond debt (two convertible bonds and a corporate bond) issued by the company.