Het schemergebied voor faillissement - Höcker Advocaten

XIV. Summary
The following summarises only briefly the general outcome of this research. It
does not include many specific detailed conclusions referring primarily to Dutch
law. The research, however, is based on the principles of Dutch law.
XIV.1 Main question and two standards
This research has questioned how and between which parties the risks of
insolvency, which occur to a limited liability company in the pre-bankruptcy
‘twilight zone’, preferably should be distributed. The principles in the articles
3:277 and 6:162 DCC (Dutch Civil Code) have been used as a starting point for
the principles of such distribution. According to article 3:277 DCC the principle
of equality governs creditor distribution of a company’s equity with the
exception of certain priority claims (paritas creditorum). However, in order to
interfere in an unequal or untimely distribution, any breach must be imputable.
Article 6:162 DCC (tort) implies this requirement. This research has shown that
the question whether or not the company will be able to continue to operate as
going concern largely defines the imputation.
In this research two standards have been formulated: On the one hand
the relation between all creditors has been defined by the paritas creditorum,
thereby leading to the ‘Pauliana-standard’. On the other hand, the consequences
of the company’s responsibility to fulfil its obligations have been investigated.
This has resulted in the ‘(prolonged) Beklamel-standard’. 1313
This research has had the ambition to formulate a mechanism for
distribution of insolvency risks through the Pauliana-standard and the
(prolonged) Beklamel-standard that involves all possible parties: creditors,
financiers, shareholders and directors of the company, which will go bankrupt.
Both standards are based on statutory law. Nevertheless, when applying these
standards the outcome appears inconsistent with some laws and Supreme Court
rulings.
XIV.2 The twilight zone
The twilight zone preceding bankruptcy has been mapped on the basis of four
criteria. The first criterion is recourse insolvency. Recourse insolvency exists if,
after liquidation, the company has insufficient means to pay all its creditors.
After recourse insolvency, a discontinuity risk for all creditors will exist and a
necessity to share may occur. This marks the beginning of the twilight zone. The
extent of recourse insolvency is also determined by the latent liquidation losses,
which are the result of a forced liquidation at discontinuity. The liquidation
losses consist of (i) the difference between the real value of all assets, valued on
1313
‘Beklamel’ refers to a standard ruling of the Dutch Supreme Court with regard to the
standard for directors of a company. According to this ruling, directors may be liable for
entering into new obligations of which they know that these cannot be met in due time
and the company is recourse insolvent.
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