Corporate Finance: Bonds (in restructuring)

With a view to the burdens that various corona aid packages (see here, in German) may have left on the balance sheets of small and medium-sized enterprises in particular, alternative or supplementary means to classic loan financing become increasingly popular in Germany. Also, as is well known, the financing of the “transformation” of the German … more

BGH against corporate zombies! Really?

In July of this year, the second civil senate of the German Federal Court of Justice (BGH) ruled that “the deliberate delaying of the filing for insolvency with the intention of delaying the end of a company, which is recognised as inevitable, for as long as possible, constitutes immoral damage within the meaning of § 826 of the German Civil Code (BGB). The conditions of § 826 of the German Civil Code if damages to the company’s creditors is thereby condoned.” This decision is interesting because, on the one hand, it possibly contradicts a decision of the BGH’s sixth civil senate, but also because some commentators (wrongly?) see in the decision a proven remedy against so-called “corporate zombies”.

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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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