2.3 Handling of the new estate (blog post 69 of one’s DBA)
So it enhances the matter as to the extent the fresh supervisory character can go hand in hand having some other role, including the adjudicatory one to
Problems can also arise in the context of the treatment of the latest insolvency estate (Blog post 69 of your DBA). Pursuant to that particular provision, financial institutions, this new creditors’ panel as well as the borrower (or the debtor’s agents) 33 33 Wessels (above mention sixteen), part 4228. can complications people act of your own insolvency professional towards supervisory courtroom or instigate your order from the supervisory court that insolvency professional should carry out a specific work otherwise is avoid a desired operate. Nevertheless, this type of serves, the acts confronted while the acts instigated, need certainly to fall under the newest insolvency practitioner’s judge task to handle and you can liquidate the fresh insolvency house. 34 34 Ibid., paragraph 4225. Select and additionally Marinus Pannevis (ed), Polak’s Insolventierecht (14th edn) (Wolters Kluwer, 2017), paragraph eight.step three.6.step one. It supply places the latest insolvency practitioner under the control of those people during the whoever focus they have started appointed, 35 thirty-five “Het [Article 69 DBA] stelt den curator onder de- voortdurende controle van hen inside the wier belang hij are aangesteld,” where comprehend the Explanatory Memorandum of Dutch Insolvency Act in Sebastian Kortmann and you will Dennis Faber (eds), Geschiedenis van de Faillissementswet. Heruitgave van Van der Feltz II (Wolters Kluwer, 2016), 8–nine. for example they aims to supply the the second actors having good simple and quick device so you’re able to dictate the new management across the bankrupt house. thirty-six thirty six Dutch Finest 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 dentro de om, zo zij menen dat bij dit beheer fouten worden gemaakt, deze te doen herstellen out of voorkomen.” Post 69 of your DBA determines your supervisory judge features to take a decision contained in this 3 days. When you take a decision inside the an article 69 process, the fresh supervisory legal efficiently acts a great deal more given that an enthusiastic adjudicator than due to the fact a manager.
The newest confluence of supervisory character and the adjudicatory character in Post 69 methods could have been slammed regarding Dutch judge books. The newest grievance revolved around the look of partiality of the supervisory judge. Partiality could become difficulty if supervisory courtroom takes a decision of an article 69 request as opposed to reading both parties of the conflict, however, through the use of non-public records and suggestions away from relaxed (preliminary) meetings towards insolvency professional. 37 37 Come across eg, Sijmen de Ranitz, “De curator als onderhandelaar,” in H. Schoordijk et al. (eds), Rond de- tafel. De juridische kaders van het how to use tagged onderhandelen. Bogaerts durante Groenen-bundel (Kluwer, 1999), 55; Wessels (a lot more than notice 16), section 4226.
step three Methodology Of your own EMPIRICAL Analysis
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).