The continuation prognosis – always a popular topic of discussion

In two recent decisions, the second civil senate of the German Federal Supreme Court (Bundesgerichtshof, BGH) and the Higher Regional Court of Düsseldorf (OLG Düsseldorf) once again deal with the question of which criteria are to be applied for a positive continuation prognosis (“Fortbestehensprognose“) in the context of the over-indebtedness test according to § 19 (2) InsO. It is interesting to look at both decisions because they are diametrically opposed in essence, but also because they provide a good illustration of the standards for the monitoring and planning obligations of the management, not only of start-ups.

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StaRUG – the first decisions are in

The StaRUG (the Geman implementation of the EU-Regulation on the “preventive restructuring framework”) has now been in force for three quarters of a year (see here) and the famous German shirtmaker Eterna is the first large and prominent company to undergo restructuring under the new law (see here, in German). Reason enough to take a look at the first decisions under the StaRUG:

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Insolvency avoidance – BGH actually with (cautious) course correction

After I had already interpreted (here, in German) some rulings of the 9th Civil Senate last year to the effect that the German Federal Civil Court (“Bundesgerichtshof”, “BGH”) was cautiously following the legislator’s intention to attenuate the law on insolvency avoidance with the reform of 2017 (see here for more details), this impression is now strengthened by a recent decision of 6 May 2021.

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StaRUG – Early risk detection? Yes, please – but how?

In my short series on the comprehensive reform of insolvency and restructuring law that came into force at the beginning of 2021 (see most recently here and here), I will in the following turn to early risk and crisis warning mechanisms. In the years since the financial crisis, this topic – at the interface with business resilience management (see most recently here) – has tended to lead a wallflower existence. Since the corona pandemic, however, all kinds of forecasts as the core of crisis and early risk detection are once again enjoying undivided attention, at least in the media.

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