Het schemergebied voor faillissement - Höcker Advocaten

Hoofdstuk XIV
the basis of the going concern assumption, and the liquidation value to be
realized; and (ii) the increase of obligations through forced liquidation as a result
of default, tort, conditional or contingent obligations and all liquidation costs in
the broadest sense of the word.
The other three tests will attribute the necessary knowledge to impute
any action contrary to the equal and timely division of the insolvent equity. For
the (prolonged) Beklamel-standard these are:
(a) factual insolvency. This criterion of liquidity indicates when a company
no longer fulfils its obligations in time; and
b) insufficient solvability. This indicates the moment when it is no longer
well considered to finance ongoing losses with debt capital.
The test for the Pauliana-standard is threatening insolvency. Knowledge thereof
occurs if one has concrete indications for a deficit.
The last three tests may become relevant to different parties at different
moments in time because they are subject to their knowledge or the knowledge
they should have.
XIV.3 The (prolonged) Beklamel-standard
Does a company have to ensure it can fulfil its obligations? When should the
assets be divided over which liabilities and should the company file for
bankruptcy or formal reorganisation (moratorium)? When must directors cease
the company’s operations to avoid a further decrease in (net) assets? According
to the Beklamel-judgement of the Supreme Court this occurs if the directors
know or should know that obligations can no longer be met in time and if the
company is recourse insolvent. This ruling has resulted in the Beklamelstandard.
This standard focuses on a chronic short-term deficit of liquidity.
Since obligations can be met with debt capital the question also arises which
equity should be available to be able to meet obligations for the longer term. The
capital of a company is being provided by its shareholders, financiers and
creditors, the stakeholders. This research has tried to answer the question on
how to distribute the insolvency risks among these stakeholders. This research
has led to the ‘prolonged Beklamel-standard’.
The (prolonged) Beklamel-standard applies to the company itself, the
parties involved, such as directors and financiers (hereinafter: insiders) and in a
specific way, its shareholders. The standard is based on a solvency test. The
standard sees to the fiduciary duties of insiders when insolvency risks originate
or increase. The standard implies accountability of directors and sometimes
financiers who do not sufficiently take care that the insufficient (net) assets will
be allocated in due time.
They may have to request shareholders to provide more equity to
continue the operations of the company as a going concern. Since the bankrupt
company is recourse insolvent, the standard sees to the distribution of risks
among the stakeholders of the company.
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