Directors Liability in the Twilight Zone

In November 2016, the European Commission presented its proposal for a Directive on Preventive Restructuring Frameworks, Second Chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures. The draft Directive provides for the possibility to reorganize prior to and outside of court supervised insolvency procedures. It envisions that such preventive restructurings should enable enterprises to restructure at an early stage and to avoid the opening of formal insolvency procedures.

In general, the entire draft Directive provides a very facilitating approach to all parties involved and one could have expected a similar approach to the directors. It could have taken away many of the possible concerns as to liability in granting securities to obtain interim finance or concerns when simply continuing trading. However, any such comfort for the directors is lacking in the draft Directive, leaving the discussion regarding director liability wide open.

In four reports, leading practitioners and academics from Germany (Rolf Leithaus and Christian Lange), Belgium (Stan Brijs and Arie Van Hoe), England (Peter Declercq) and the Netherlands (Loes Lennarts), reflect on the current role and responsibilities of directors in the twilight zone in their respective jurisdiction and what role liability should play also under the envisioned Directive. Recurring issues are possible directors' liability for incurring new liabilities, selective payment, duty to file for insolvency and liability for deepening the insolvency. These reports were presented and discussed at the annual meeting of NACIIL on 9 November 2017 in Amsterdam.