Category Archive: Case law

Landmark Decision by German Federal Court of Justice Affecting License Purchases in the Insolvency Context

License purchases can be excluded from the insolvency administrator’s right to reject or assume contracts By Peter Jark, Stefan Dittmer and Tom Braegelmann and Fabian Hollwitz The Federal Court of Justice (Bundesgerichtshof – “BGH”) on 21 October 2015 issued a landmark decision that is of utmost importance to restructuring and the intellectual property law (case …

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2016/06/29/landmark-decision-by-german-federal-court-of-justice-affecting-license-purchases-in-the-insolvency-context/

Federal Court of Justice attenuates management liability risks for payments made after the company’s insolvency

By Dr. Philipp Clemens The liability regime under Section 64 sentence 1 GmbHG and Sections 92 para. 2, 93 para. 3 Nr. 6 AktG for payments made after the company’s insolvency imposes severe personal liability risk on the management of limited liability companies and stock corporations. This does not only apply to the management of …

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2016/03/15/federal-court-of-justice-attenuates-management-liability-risks-for-payments-made-after-the-companys-insolvency/

Major Clawback Reform in Germany Getting Closer

Major Clawback reform in Germany Getting Closer By Tom Braegelmann On February 24, 2016, the legal committee (Rechtsausschuss) of the German parliament (Bundestag) held a hearing on the proposed reform to considerably limit the clawback regime (Insolvenzanfechtung) in the German insolvency code (Insolvenzordnung – InsO). The general gist of hearing was that the current German …

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2016/02/26/major-clawback-reform-in-germany-getting-closer/

Director Liability in an International Context

ECJ: Director Liability Under German Law Applies to Directors of insolvent English Limited Company with its COMI in Germany By Peter Jark and Tom Braegelmann The European Court of Justice (“ECJ“) on 10 December 2015 issued a decision (case no. C-594/14, Simona Kornhaas v. Thomas Dithmar, available here) that is of immense relevance for all …

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2016/02/09/director-liability-in-an-international-context/

Risk of taxable profits due to subordination agreements

The Federal Fiscal Court (Bundesfinanzhof – BFH) on 14 April 2015 issued a decision (case no. I R 44/14, available here) that is of immense relevance for all creditors and debtors that face the need of a subordination agreement (Rangrücktrittvereinbarung) under German law. Share this:

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2015/10/19/risk-of-taxable-profits-due-to-subordination-agreements/

Subordination clear? German Federal Court of Justice clarifies the scope and limits of subordination agreements

By Peter Jark, Marei Hellmig, Mareike Schwedler and Tom Brägelmann The Federal Court of Justice (Bundesgerichtshof – BGH) on 5 March 2015 issued a decision (case no. IX ZR 133/14, available here) that is of immense relevance for all creditors and debtors that face the need of a subordination agreement (Rangrücktrittvereinbarung) under German law. Basically, …

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2015/10/15/subordination-clear-german-federal-court-of-justice-clarifies-the-scope-and-limits-of-subordination-agreements/

Federal Court of Justice: Positive knowledge of Ponzi scheme implies creditor’s knowledge of wilful discrimination

The Federal Court of Justice (BGH, 8 January 2015, IX ZR 198/13) acknowledged the creditor’s positive knowledge of a Ponzi scheme run by the debtor when enforcing a claim for the repayment of an investment as a material sign of evidence that the creditor intends to discriminate other creditors pursuant to § 133 (1) German Insolvency …

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2015/07/20/federal-court-of-justice-positive-knowledge-of-ponzi-scheme-implies-creditors-knowledge-of-wilful-discrimination/

BGH: No bar date in insolvency plan for later filed insolvency claims

The Federal Court of Justice (Bundesgerichtshof) on 7 May 2015 decided a case (case no. IX ZB 75/14, available here) that is of relevance especially for stakeholders investing and participating in any insolvency plan in one of the possible insolvency procedures under German Law. Share this:

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2015/07/10/bgh-no-bar-date-in-insolvency-plan-for-later-filed-insolvency-claims/

Invitation to obstruction by junior ranking lien holders

The Federal Court of Justice (Bundesgerichtshof – “BGH“) on 30 April 2015 decided on a case (case no. IX ZR 301/13, available here) that is of relevance especially for banks and investors who hold security in the form of first/senior ranking land charges (Grundschulden). The Federal Court of Justice dealt with the question of whether …

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2015/06/24/invitation-to-obstruction-by-junior-ranking-lien-holders/

European Court of Justice rules on cross-border insolvency proceedings

The European Court of Justice (ECJ) on 16 April 2015 decided on a case that is of enormous relevance for cross-border insolvency proceedings. The main topic the court ruled on was that Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1) (the European …

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Permanent link to this article: http://blogs.dlapiper.com/derestructuring/2015/06/18/european-court-of-justice-rules-on-cross-border-insolvency-proceedings/

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