Archive: June 2023

“Bankruptcy” in the Australian vernacular refers to personal insolvency, it does not extend to corporates or other legal entities.

The German Federal Supreme Court (Bundesgerichtshof, BGH) recently had the opportunity to revisit the controversial discord between corporate and insolvency laws on the issue of claw back of shareholder dividends. In principle, the provisions of the German Stock Corporation Act (Aktiengesetz, AktG) protect shareholders from reimbursement claims in the event that they receive dividend payments, which later turn out to have been illegal. However, this only applies if the shareholders did not have knowledge about the unlawfulness of the dividend payments. In its judgement of 30 March 2023 (IX ZR 121/22), the BGH ruled that this does not extend to a protection from insolvency related claw back claims.

In its judgment of 23 March 2023 (ECLI:NL:HR:2023:445), the Dutch Supreme Court confirmed that to be liable as a de facto director it is not necessary for a person to be controlling the company in lieu of the management board, but instead it is sufficient for that person to have assumed some part of the company’s managerial powers, even while the management are exercising their duties.