“Turnaround” – do we still have the right focus?

“It’s not just about doing the right things,
but doing things the right way.”
Peter Drucker

German insolvency law has been a permanent construction site since the end of the 1970s. This truism will not change even after the SanInsFoG came into force at the beginning of 2021 (see here), as the EU Commission’s efforts to harmonise national insolvency regimes show (here). And it is precisely these EU efforts that, in case of doubt, are more likely to have forced Germany to change its perspective than the previous purely national reforms. After all, the introduction of a “pre-insolvency restructuring procedure” (based on EU requirements) in the form of the StaRUG (see most recently here) and the limitation of the insolvency periods and thus filing obligations, which in the meantime have become quite excessive, chosen by the SanInsFoG to fit into German law should actually direct the focus more on the (out-of-court) restructuring of companies than on insolvency resolution. Nevertheless, I have the impression that the professional discussions are more focused on further increasing the efficiency of insolvency law (“are we doing things right?”) than on increasing effectiveness towards more (sustainable) restructurings.

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The German economy in March 2021 – walking on egg shells?

After the February figures presented a mixed picture while discussions on a “serious” lockdown alienated the economy (here) the question was how the German economy would fare in March 2021. Not too bad, but, hey, let’s take a more detailed view into the German economy: Although (as reported) the “five wise (wo)men” (Wirtschaftsweise) had lowered … more

Rent reduction in Corona times – “Legally interesting – Politically explosive”

The German federal government is trying to at least cushion the economic consequences of the Corona pandemic in several ways. One of these is a regulation that is likely to be aimed primarily at retailers severely affected by forced closures, namely to force landlords to adjust rents according to the principle of the so-called “cessation of the implicit of the contractual basis” (“Wegfall der Geschäftsgrundlage“). The following article proves that a hectic rush does not automatically make for the best possible regulation.

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StaRUG – how much “rescue” do you want?

Everyone is talking about restructuring, so I am too. In my small series of in-depth articles on the SanInsFoG in general and the StaRUG in particular (see already here and here), I will now deal with the aspect of what “depth of reorganisation” the StaRUG actually stipulates (with a small, but important for future case law on the StaRUG, side glance at the InsO).

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SanInsFoG – Insolvency grounds & Co., what has changed?

Now it’s official – the SanInsFoG came into force (at least in its most important parts) on January 1, 2021. And already, the first reform is just around the corner: the pandemic-related further extension of the “COVInsAG”. After the smoke has cleared from the trench warfare over the design of this next “reform of the century”, which after a decade of discussion has finally given birth to something like a “pre-insolvency restructuring mechanism”, I will (as already promised at the end of last year, here) take a more in-depth look at specific aspects of this reform work in a small series.

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D&O – When the insurance company has to pay thanks to the BGH

In a decision from November 2020, the German Federal Court of Justice (“Bundesgerichtshof“, “BGH“) explicitly opposed the view predominantly held by the Higher Regional Court Düsseldorf (most recently still: OLG Düsseldorf, judgment 26.06.2020 – 4 U 134/18, in German) and classified the claim for damages against the managing director pursuant to § 64 Sentence 1 GmbHG (German Act on Limited Liability Companies) as a statutory liability claim for damages within the meaning of the insurance conditions.

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