For Directors & Officers
In order to track latest developments in law for our advisory practice in an early stage and also to actively support the exchange between practice and research, we have been publishing articles and books in terms of our focus areas for many years.
"Personal liability of managing directors for voluntary expenses of GmbH customers in case of delay in filing for insolvency"
In case of a delay in filing for insolvency, the Higher Regional Court of Karlsruhe (9 Sept 2020 – 6 U 109/19) affirms personal liability of the managing director of a German private limited company for voluntary expenses of the company’s customer which are made after violation of the insolvency filing obligation in confidence of solvency and in the reasonable expectation of enforcing a claim against the company established prior to factual insolvency.
"Payment Ban: Managing Director cannot rely on lawful alternative behaviour"
According to a decision of the German Federal Court of Justice (BGH, 11 February 2020 – II ZR 427/18), Managing Directors of a GmbH & Co. KG (i.e. Limited Partnership comprising of a Private Limited as General Partner) are personally liable for an infringement of the so called Payment Ban. This prohibition materializes if the company gets factually illiquid and/or over-indebted which then leads to the obligation for the management to stop any payments (e.g. regarding invoices of suppliers), in principle. This also applies to the receipt of payments from a customer on the company’s bank account with a negative balance – irrespective, if the underlying claim of the company could have been enforced in favour of the company’s creditors.
"Managing Directors’ liability after factual insolvency"
The Higher Regional Court of Munich (25 July 2019 – 23 U 2916/17) states a violation of the payment ban pursuant to section 64 s. 1 GmbHG on the one hand with regard to payments from the company’s bank account and on the other hand with regard to payment receipts that have been offset against the debit balance of the company’s account by the bank. If the managing director does not prevent the payment of a third party to a company’s account held in the debit, this also qualifies as a “payment”. In contrast, a claim for damages by the insolvent company pursuant to section 43 (2) GmbHG against its managing director is excluded with regard to new liabilities established after factual insolvency: the receiver cannot claim a new creditor’s loss or damage resulting from deepening insolvency due to a debit of the company’s assets with new liabilities or new creditor claims as a company’s damage via section 43 (2) GmbHG.
"Insolvency and corporate law aspects of directors’ liability in the corporate crisis"
In the corporate crisis, managing directors are exposed to increased liability risks. In particular, this applies to pre-insolvency obligations such as the payment ban and the obligation to file for insolvency. Additionally, various liabilities also remain in insolvency proceedings. This article, in addition to the essay by Wollweber/Vitale (GmbH-StB 2020, 48) on tax liability risks, sheds light on selected German court decisions in the fields of commercial, corporate and insolvency law over the last years as well as recent developments due to the Corona Insolvency Suspension Act (COVInsAG).
"The suspension of the insolvency filing duty and the adjustment of the payment ban from the perspective of suppliers’ executives"
Against the backdrop of the Corona pandemic and the resulting financial problems of many German companies, the Corona Insolvency Suspension Act (COVInsAG) has recently come into force. This temporarily suspends the insolvency filing duty and also adjusts the prohibition ban. While this is welcomed from the point of view of executives acting for distressed companies, this leads to new personal liability risks for executives of contractual parties (e.g. suppliers).
Practice Handbook of Restructuring Law
Solutions and Duties Across 4 Crisis Phases
Now in its tenth year, the “Practice Handbook of Restructuring Law” is being published in the 4th edition (2020). More than 50 highly respected authors – lawyers from renowned corporate law firms and professors – shed light on legal aspects of restructurings and insolvencies. The book is divided into four sections: strategic crisis, operational crisis, liquidity crisis and insolvency. The 23 chapters cover a comprehensive range of topics ranging from working capital management and debt buy backs to debt equity swaps via distressed M&A, labor law aspects of the corporate crisis, trusts, self-administration proceedings and mass loans under German law.
Governance International / Governance
Directors’ Duties in
The book “Governance International” (German version) and “Governance” in English explains the legal obligations of managing directors in 23 countries. Structured according to typical situations (e.g. M&A, crisis, accounting) the professional contents are presented in a succinct and practice-oriented manner by lawyers of renowned corporate law firms from all over the world.
Corporate Finance Law for Finance Managers
M&A, Capital Markets and Financing Solutions
The book “Corporate Finance Law for Finance Managers” provides CFOs, Finance Directors and Bankers with legal know-how in terms of capital markets, financings and M&A. Solutions and structures (e.g. asset deal/share deal, syndicated loans, bonds, debt equity/debt asset swap) are presented in a practical manner with their legal characteristics..