Het schemergebied voor faillissement - Höcker Advocaten

Summary
In this research the Beklamel-standard has been translated to a formula:
LA ≥ sd. The liquid assets available should at least be equal to the short-term
debt. Liquid assets (LA) are defined as all assets, which are liquid or can be
made liquid at short term: accounts receivable, cash, positive bank balance, and
unused credit line available. Short-term debt (sd) is defined as all debt to be paid
on the same short term as the liquid assets can be made liquid.
The prolonged Beklamel-standard demands a minimum equity relative
to the total liabilities. This requirement can be translated to a formula for
maximum financing by debt capital: L ≤ (1-s).I – s.LA – P. ‘s’ is defined as the
minimum solvability ratio (equity divided by the total of assets); I is defined by
all assets other than liquid assets: fixed assets, stocks, work in progress, and all
other liquid assets, which cannot be made liquid in the short term; the loans (L)
are defined as long-term debt and all lines of credit to their maximum facility
and all short-term debt which has not be repaid on short term; P are the
provisions. This research has demonstrated that the required solvability does not
only provide certain coverage for existing obligations. The requirement reflects
to justify expectations with regard to future profitability. The Beklamel and
prolonged Beklamel-standard define the requirements for the financing structure
and regulate the distribution of the risks among the stakeholders. In fact, it limits
the possibilities to shift the discontinuity risks mainly to creditors who are
subject to information asymmetry.
This research has shown that the Beklamel-ruling and the going concern
assumption imply that the effect of unforeseen calamities and liquidation losses
of a limited liability company are (partly) the risk of financiers and creditors.
Recourse insolvency becomes relevant when it is too late to provide for
coverage for the deficit. The principle of pacta servanda sunt appears not to
apply to limited liability companies. Only if the directors recklessly or
intentionally cause the unnecessary liquidation of the limited liability company,
they will be liable for the full deficit (2:138 and 2:158 DCC). The insolvency
risk mainly is borne by the creditors who suffer from information asymmetry
and who do not obtain a market-efficient compensation for their credit
extensions. The fact that a limited liability company does not have to be able to
fulfil all its obligations at liquidation is economically legitimised. This limited
liability is a means to improve the economy and the investment climate. The
going concern assumption is macro-economical efficient as long as the
company’s profitability is positive. Debt financing by financiers and creditors
improves the financial leverage if, and as long as, the profitability of the
company is positive. The preferential position of financiers is legitimised by the
financial leverage. The going concern assumption requires trust in the future by
creditors. The going concern assumption must, however, be limited. It requires
justified expectations regarding future profitability. Although the solvability of a
company is only a limited indicator for future profitability, recent research
shows that requirements for solvability will improve a timely reorganisation and
may serve as a significant indicator for justified future expectations.
Shareholders will only be willing to invest more if they trust the directors and
their analysis and expect a successful reorganisation.
527