2.1 Claims resistant to the estate
If the a creditor argues they have an effective pre-insolvency allege up against the borrower, (s)they have to submit that claim into insolvency practitioner to have verification in order to be qualified to receive repayments in the continues. The latest insolvency practitioner provisionally recognizes that claim if (s)he does not have objections towards lifestyle or quantity of that claim. If the next no other creditor issues (the degree of) brand new claim, the newest verification conference establishes the brand new validity of the submitted allege, meaning that the creditor under consideration tend to display throughout the proceeds. 25 twenty five Based on both ranks of your own allege as the better while the perhaps the estate is sufficient to match the allege involved. The fresh insolvency practitioner often dispute the registered allege if (s)he has one questions concerning your life of the level of that claim, that could give rise to a dispute for the creditor. twenty six 26 This new verification procedure was laid down during the Article 110 mais aussi seq., DBA.
Pursuant to that particular procedure, the brand new supervisory legal must make an effort (in the confirmation appointment) to attain funds between your disputants. When your conflict along side claim resistant to the house cannot be fixed because of the a settlement, the fresh supervisory court will send the new argument to help you judge process before the judge. twenty-seven 27 This is exactly described as a “renvooiprocedure” (claim recognition continuing). Because of the concept of mediation created in it contribution, it could be contended your supervisory court could have been assigned with a role complete with a good “light” kind of mediation. 28 twenty-eight Rutger Schimmelpenninck, “De rol van de rechter c.q. rechter-commissaris,” during the Sebastian Kortmann and you can Teun Struycken (eds), Herijking van het faillissementsrecht (Kluwer, 1999), 96: “Ook blijkt dat de wetgever aan een bemiddelende rol van de R-C heeft gedacht.” We consider this habit as a white particular mediation, as the software is limited by new confirmation meeting.
dos.dos Says of one’s house
The fresh new part of supervisory court when considering issues to says of your estate up against third parties is rather restricted, as the (s)he has only to buy permitting the newest insolvency practitioner in order to start legal procedures with respect to the fresh property. 31 30 Article 68(3), DBA. Including, issues within insolvency professional in addition to debtor could possibly get rotate to responsibility. The latest interviewees provided certain samples of problems where (board off) directors away from an insolvent limited liability company happened directly accountable by the insolvency specialist.
The fresh new insolvency professional provides a range of legislative basics within their otherwise the girl discretion to hang the new board of directors – otherwise just one manager – regarding a company together and severally responsible. The insolvency professional may, inter alia, support the movie director(s) accountable towards company to possess poor administration based on Blog post dos:9 of the Dutch Municipal Password (“DCC”) 30 30 Pursuant to that provision, the fresh director is liable to possess damages sustained from the company given that from poor upforit management. otherwise, under Content 2: of one’s DCC, 31 30 Blog post 2:138, DCC is just applicable for the personal limited-liability organization. Article dos:248, DCC is the equivalent into the private limited-liability organization. Pursuant to the specifications, the new administrators is liable for the degree of that your debts from a company exceeds brand new possessions just after liquidation. (s)he is able to contain the movie director(s) responsible toward insolvency house towards the poor overall performance off opportunities, in case it is plausible your incorrect overall performance regarding jobs was an essential reason for the newest insolvency. thirty two thirty two There are also almost every other basis on which brand new insolvency professional could possibly get hold a movie director directly responsible. For further discovering into directors’ liability about Netherlands, pick such as for instance, H. De Groot, Bestuurdersaansprakelijkheid. Recht en Praktijk nr. ONR2 (Wolters Kluwer, 2011).