Issues may also develop in the context of the treatment of the fresh insolvency estate (Blog post 69 of your DBA). Pursuant to that particular provision, loan providers, the latest creditors’ committee in addition to debtor (and/or debtor’s representatives) 33 33 Wessels (more than mention 16), section 4228. can be difficulties people work of one’s insolvency specialist to your supervisory judge or start your order throughout the supervisory judge your insolvency practitioner is always to manage a particular act or will be abstain from a proposed act. Nonetheless, this type of serves, the acts confronted therefore the acts inspired, have to get into the newest insolvency practitioner’s courtroom task to deal with and you may liquidate this new insolvency property. 34 34 Ibid., paragraph 4225. See along with Marinus Pannevis (ed), Polak’s Insolventierecht (14th edn) (Wolters Kluwer, 2017), part 7.step 3.6.step 1. It supply leaves new insolvency professional beneath the command over men and women into the whoever focus he’s got been designated, thirty five thirty five “Het [Blog post 69 DBA] stelt den curator onder de voortdurende controle van hen when you look at the wier belang hij was aangesteld,” which comprehend the Explanatory Memorandum of the Dutch Insolvency Work into the Sebastian Kortmann and you can Dennis Faber (eds), Geschiedenis van de Faillissementswet. Heruitgave van Van der Feltz II (Wolters Kluwer, 2016), 8–9. and thus they will supply the the latter actors that have a good quick and simple instrument to determine the fresh new management along side broke estate. thirty six thirty six Dutch Supreme Courtroom , 161: “(…) biedt aan de- daarin genoemden een eenvoudige dentro de snelle mogelijkheid hitwe invloed uit te oefenen op het beheer more de- failliete boedel dentro de om, zo zij menen dat bij dit beheer fouten worden gemaakt, deze te doen herstellen from voorkomen.” Article 69 of your DBA determines that the supervisory judge enjoys to take a decision contained in this three days. When you take a decision into the an article 69 processes, the new supervisory judge efficiently acts a lot more since an adjudicator than just due to the fact a management.
The interviews was indeed partial-planned, following three themes of one’s opportunity (barriers, recommendations and you can proper habits)
The new confluence of one’s supervisory role plus the adjudicatory character in Article 69 measures might have been criticized from the Dutch judge books. The fresh issue had to do with the look of partiality of the supervisory courtroom. Partiality becomes an issue in the event the supervisory judge requires good choice regarding an article 69 consult in the place of hearing both sides of new conflict, however, through the use of low-public records and you can suggestions from everyday (preliminary) consultation services with the insolvency professional. 37 37 Come across for example, Sijmen de Ranitz, “De- curator als onderhandelaar,” when you look at the H. Schoordijk et al. (eds), Rond de tafel. De juridische kaders van het onderhandelen. Bogaerts durante Groenen-bundel (Kluwer, 1999), 55; Wessels (above notice 16), part 4226. Which enhances the matter to what the total amount brand new supervisory part is also go hand in hand which have other character, like the adjudicatory you to definitely.
step 3 Methodology Of EMPIRICAL Investigation
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. 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).