Insolvency & Restructuring
A recent decision concerning the APCOA Group is the latest case to illustrate the willingness of English courts to accept jurisdiction over non-UK companies. The case demonstrates the need to develop the government draft bill on group insolvencies into law in Germany. It clearly shows the need for German insolvency law to provide for pre-insolvency restructuring proceedings and insolvency laws for group companies.
Following a referral from the Federal Court of Justice, the European Court of Justice recently ruled on whether the EU Insolvency Regulation is applicable where insolvency proceedings have been opened in a member state, but the place of residence or registered office of the defendant is not in a member state.
Suhrkamp has made legal history by initiating insolvency protection proceedings. It is at the centre of a power struggle between its two rival shareholders, which are attempting to wrest control over its business operations. The proposed insolvency plan provides for transformation from a limited commercial partnership into a German stock corporation. The dispute is unlikely to be resolved in the foreseeable future.
Contractual trust agreements are often used by German companies to set up a pension scheme in a tax-efficient manner to protect pension claims in the event of an employer's insolvency. A recent court decision shows that for a contractual trust agreement to be upheld, it is essential to properly implement all elements of the twofold trust into the underlying trust agreement.
The Federal Ministry of Justice recently published a discussion paper on the Act for the Facilitation of the Management of Corporate Group Insolvencies. The paper proposes the introduction of rules to enhance the coordination of multiple insolvency proceedings in domestic group settings.
The Duisburg Regional Court recently ruled that an insolvency court can empower the insolvency debtor to incur certain predetermined preferential claims. The decision will help to shape prevailing opinion after several local insolvency courts arrived at divergent rulings. For now, debtors should seek constructive dialogue with the competent local insolvency court before filing the petition for the opening of insolvency proceedings.
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Securitisation & Structured Finance
Irrespective of certain weaknesses that German restructuring and insolvency law may have, creditors whose claims are secured by land charges can nevertheless choose between several feasible possibilities for realising encumbered real estate. German law tends to be somewhat reluctant to allow creditors to grasp direct control of real estate. As such, the Federal Ministry of Justice's recent proposals should be welcomed.