Ms Cristina Weidner

Cristina Weidner


Insolvency & Restructuring

Berlin to Korneuburg: NIKI's insolvency proceedings
Germany | May 25 2018

Charlottenburg Local Court ordered insolvency proceedings for safeguarding NIKI Luftfahrt, a company incorporated under Austrian law with its registered office in Vienna. At the time, its indirect shareholder, Air Berlin (with its registered office in Berlin), had already commenced proceedings in Germany. While Charlottenburg Local Court was satisfied that NIKI's centre of main interest was in Berlin, the Berlin Court of Appeal decided that it had been wrong to assume jurisdiction.

Increased liability for managing directors – bow wave theory rejected by court
Germany | February 23 2018

German regulations obliging managing directors to monitor the liquidity of a company during crisis situations are typically strict and give rise to the risk of personal liability in cases of non-compliance. Legislation requires company management to file for insolvency proceedings without undue delay in the case of illiquidity or over-indebtedness. Continued trading where the company is considered to be materially insolvent can have serious consequences.

Guidelines for creditors participating in financial restructurings
Germany | September 09 2016

Case law has consistently set out the terms on which the refinancing or financial restructuring of a distressed company can take place in order to avoid lender liability and prevent the clawback of payments made under the finance agreements. The Federal Court of Justice has now outlined certain guidelines and rules of conduct which creditors should observe in the context of financial restructurings.

Equitable subordination of leased assets – the end of the story?
Germany | October 02 2015

The Federal Court of Justice recently stated that the lease of assets by shareholders to their subsidiaries no longer falls under the principle of equitable subordination. The court stated that shareholders are no longer considered subordinated creditors in this respect. Thus, rental payments made in the year preceding the opening of insolvency proceedings cannot be clawed back on the basis of the rules applying to the repayment of a shareholder loan.

Self-administration proceedings: creditor support determines success
Germany | June 19 2015

There is some uncertainty in self-administration proceedings as to the scope and content of a 'substantial impairment of interests', which will lead the court to refuse an application for self-administration and, where alleged by creditors, will trigger severe consequences for the restructuring process. A recent Cologne District Court decision has further clarified the definition of a 'substantial impairment of interests'.

Insolvency avoidance rules re-loaded?
Germany | November 28 2014

The Federal Court of Justice recently ruled that the presumption of an intentionally disadvantageous transaction based on awareness of impending illiquidity can be rebutted if the debtor has made a congruent payment against a fair and immediate consideration which was essential for the continuation of the business and beneficial to the creditors.

Court refuses to recognise an English scheme of arrangement
Germany | August 03 2012

The German Federal Court of Justice has refused to recognise an English scheme of arrangement in relation to the German branch of an insurance company, finding that such recognition would be contrary to EU Regulation 44/2001. The judgment was based on specific insurance-related provisions of the Judgment Regulation, suggesting that outside the scope of these specific provisions, schemes will be recognised in Germany.

Courts adopt clear position on subordination of shareholder loans
Germany | May 18 2012

The Federal Court of Justice has clarified that a former shareholder will be subordinated to its claim under a loan only for a one-year period. The ruling has been widely accepted by German legal scholars and practitioners. However, some legal authors have criticised the ruling, since they think that it could create questionable incentives for delays in filings for insolvency in order to overcome the one-year period of subordination.

Reform Act improves creditor participation in selection of insolvency administrator
Germany | March 09 2012

The Reform Act on insolvency law, which aims to facilitate the restructuring of companies within insolvency proceedings, recently entered into force. The main scope of the act is to strengthen the creditors' influence throughout preliminary insolvency proceedings, particularly by involving the creditors at an early stage in the selection of the insolvency administrator.

Reform act on restructuring insolvent companies: upcoming changes
Germany | December 09 2011

Parliament recently adopted various changes to the insolvency law, which aim to facilitate the restructuring of operating companies. The revisions are intended to improve the prospects of a successful restructuring; involve the debtor and creditors in the selection of the preliminary insolvency administrator; and improve the reliability and predictability of insolvency proceedings.

Courts accept transferability of restitution claims resulting from clawback
Germany | July 29 2011

Following a ruling by the Federal Court of Justice, when faced with a contestable transaction an insolvency administrator now has a second option to satisfy the creditors. Instead of pursuing claims for restitution before a national court, it may choose to sell them in order to increase the value of the insolvency estate immediately.

Three-week payment period permitted for crisis-ridden limited liability company
Germany | June 17 2011

Managing directors of a crisis-shaken company are obliged to file for the opening of insolvency proceedings within three weeks of an insolvency event arising. Managing directors are personally liable for any payments which they make out of the company's assets during that three-week period. However, a recent court ruling held that payments made by managing directors with a view to an intended restructuring are permissible.