2 August 2021
R&I update – August 2021 – 2 of 2 Insights
The German Federal Court of Justice (Bundesgerichtshof) recently changed its interpretation of the law regarding clawback claims, Vorsatzanfechtung (case of actio pauliana). Here, we outline how the Court's position on clawback claims has changed and what this could mean for future claims.
According to section 133 (1) of the German Insolvency Act (Insolvenzordnung, InsO), a transaction entered into by a debtor during the 10 years prior to a request to open insolvency proceedings (or following this request) that is intended to disadvantage the debtor's creditors may be contested if the other party was aware of the debtor's intention on the date of this transaction.
In determining the debtor’s intention and the other party’s awareness of this in a recent case, the Bundesgerichtshof has decided that:
Limiting the circumstantial evidence of the debtor's intention to disadvantage and the awareness of this intention, it gives opposing parties new hope of avoiding a successful insolvency recission (Anfechtung) by the insolvency administrator.
To discuss the issues raised in this article in more detail, please reach out to a member of our Restructuring & Insolvency team.