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Purchase of certificates: is a bank required to disclose a commission agreement between the issuer and the bank?

CMS Hasche Sigle
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Germany
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November 27 2012

In four judgments of 26 June 2012, case refs.: XI ZR 259 11, XI ZR 316 11, XI ZR 355 10 and XI ZR 356 10, the Federal Court of Justice (BGH) has again stated its position on the question of when there is a duty to disclose commission

Equal treatment of a silent shareholder and a GmbH shareholder in relation to the regulations on maintenance of capital

CMS Hasche Sigle
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Germany
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November 27 2012

Following the entry into force of the Act to Modernise the Law Governing Private Limited Companies and to Combat Abuses (MoMiG), an atypical silent shareholder must still be treated as a subordinate insolvency creditor for the purposes of section 39(1) no. 5 of the Insolvency Act (InsO) in the event that the company becomes insolvent, assuming the status of the silent shareholder is similar to that of a shareholder in a GmbH (private limited company

Resistance to insolvency of a claim for deletion from the register and of an assignment by way of security relating to a claim to restitution

CMS Hasche Sigle
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Germany
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November 27 2012

In two recent judgments, the Federal Court of Justice (BGH) dealt with the resistance to insolvency of the statutory claim for deletion of a land charge and the resistance to insolvency of the claim for restitution of higher or equal ranking land charges which has been assigned for security purposes

Enforcement of “double security” in insolvency

CMS Hasche Sigle
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Germany
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May 31 2012

The Federal Court of Justice (Bundesgerichtshof, BGH) pronounced on double securities in its eagerly anticipated judgment of 1 December 2011 (IX ZR 1111

Debt-equity swap Legal “restructuring” of a restructuring instrument

CMS Hasche Sigle
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Germany
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May 31 2012

On 27 October 2011, the German parliament adopted the Law for Further Facilitation of the Restructuring of Businesses (Gesetz zur Erleichterung der Sanierung von Unternehmen, ESUG), which entered into force on 1 March 2012

Temporal scope of subordination of shareholder financing

CMS Hasche Sigle
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Germany
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May 31 2012

In insolvency proceedings, claims for repayment of shareholder loans particularly if granted to a company limited by shares or a limited commercial partnership are generally subordinate

The new ESUG law for further facilitation of the restructuring of businesses

CMS Hasche Sigle
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Germany
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May 31 2012

Now everything will be better!

Insolvency proceedings: keeping the creditors informed

CMS Hasche Sigle
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Germany
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November 24 2011

Creditors and their legal advisers are often uncertain as to what if any information they can request from the insolvency administrator

Claims under loans made by the shareholder’s family members will not be given a subordinate ranking in insolvency proceedings

CMS Hasche Sigle
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Germany
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November 24 2011

The German Federal Court of Justice (Bundesgerichtshof - BGH) in its decision of 17 February 2011 (IX ZR 13110) has been dealing with the issue which since the Act to Modernise the Law Governing Private Limited Companies and to Combat Abuses (Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbrauchen - MoMiG) came into effect is being controversially discussed as to whether loans by family members (in particular the shareholder’s siblings, spouse and children) in insolvency proceedings will be given subordinate ranking

Using a binding letter of comfort to avoid risks of voidable preference

CMS Hasche Sigle
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Germany
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November 24 2011

The risks facing a lending bank if the borrower becomes insolvent are often twofold

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