dos.3 Management of the fresh new home (article 69 of the DBA)


dos.3 Management of the fresh new home (article 69 of the DBA)

Which raises the matter as to what the total amount the latest supervisory role can also be wade hand-in-hand with other character, including the adjudicatory you to definitely

Conflicts also can develop in the context of treating new insolvency property (Blog post 69 of your DBA). Pursuant to that particular provision, loan providers, the new creditors’ panel and also the borrower (or perhaps the debtor’s representatives) 33 33 Wessels (significantly more than notice sixteen), paragraph 4228. can complications any act of insolvency professional to your supervisory legal or instigate an order throughout the supervisory judge your insolvency specialist will be create a specific act or will be abstain from a desired work. However, these acts, both acts challenged additionally the serves instigated, need certainly to end up in brand new insolvency practitioner’s legal activity to cope with and you may liquidate the fresh new insolvency property. 34 34 Ibid., paragraph 4225. Look for and additionally Marinus Pannevis (ed), Polak’s Insolventierecht (14th edn) (Wolters Kluwer, 2017), paragraph seven.step three.six.step 1. It provision places the fresh new insolvency professional beneath the power over those people into the whose attract they have been designated, 35 thirty five “Het [Article 69 DBA] stelt den curator onder de voortdurende controle van hen into the wier belang hij try aangesteld,” wherein understand the Explanatory Memorandum of your Dutch Insolvency Work when you look at the Sebastian Kortmann and you can Dennis Faber (eds), Geschiedenis van de- Faillissementswet. Heruitgave van Van der Feltz II (Wolters Kluwer, 2016), 8–nine. and therefore it aims to provide the aforementioned actors which have good quick and simple tool so you can determine the fresh new government across the bankrupt home. 36 thirty six Dutch Best Courtroom , 161: “(…) biedt aan de daarin genoemden een eenvoudige dentro de snelle mogelijkheid invloed uit te oefenen op het beheer more than de failliete boedel en om, zo zij menen dat bij dit beheer fouten worden gemaakt, deze te doen herstellen off voorkomen.” Post 69 of your DBA decides the supervisory judge provides when planning on taking a decision inside three days. When taking a choice into the an article 69 processes, the new supervisory courtroom effectively serves far more just like the an adjudicator than as a manager.

The confluence of supervisory character together with adjudicatory role from inside the Blog post 69 measures has been criticized on Dutch courtroom books. The latest ailment revolved around the look of partiality of your own supervisory court. Partiality can be a problem when the supervisory legal takes good choice regarding a post 69 consult without hearing both parties out of the newest argument, however, by applying low-public record information and you will suggestions regarding casual (preliminary) consultations for the insolvency specialist. 37 37 Look for such as, Sijmen de Ranitz, “De- curator als onderhandelaar,” during the H. Schoordijk et al. (eds), Rond de tafel. De- juridische kaders van het onderhandelen. Bogaerts en Groenen-bundel (Kluwer, 1999), 55; Wessels (a lot more than note sixteen), paragraph 4226.

step three Methodology Of the EMPIRICAL Data

The study, whose results are reported here, was part of an empirical research project that aimed to identify obstacles, best practices and possible strategic behaviour of relevant key players in relation to the role of courts competent in insolvency cases. The qualitative study consisted of an interview study and the conducting of three focus groups. The interviews were semi-structured, following the three themes of the project (obstacles, best practices and strategic behaviour). 38 38 The framework of themes that we explored during these interviews are available online at: < accessed (only available in the Dutch language). The interviews were conducted with 32 key-players in the insolvency process. The majority of the interviewees were insolvency/supervisory judges (6) and insolvency practitioners (12). Additionally, interviews were conducted with insolvency specialists working for the tax authority (Ministry of Finance) (2), a bank employee (1), insolvency specialists working for the Dutch Employee Insurance Agency (UWV) (7) and insolvency law professors (4).

Traduci »