Challenge of transactions under Insolvency Law – will a fatal path end soon?
Decisions of insolvency courts regarding the challenge of so called “premeditated discriminatory transactions” have flourished. Besides the obvious economic risks, the granting of payment deferrals for business partners in crisis became a high risk under legal aspects.
Only recently, the Federal Supreme Court has confirmed that such accommodations might count as circumstantial evidence for insolvency; consequently the insolvency administrator may be entitled reclaim payments hereunder (BGH IX ZR 109/15). However, the courts have to take into consideration all relevant circumstances of the individual case (BGH IX ZR 6/14). Now the government has introduced a reform bill (BR-Drs. 495/15). We expect more broadly-defined safe harbor principles to apply in the future.