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The Act on the Approval of Private Arrangements (WHOA) is an effective instrument to prevent the bankruptcy of a viable company, but small(er) companies benefit less from it. This follows from a joint study by  and the commissioned by the .  In an interview with , our colleague Wesley Terhaerdt discusses the (im)possibilities of the WHOA for SMEs. The full interview can be read here: https://lnkd.in/eqKYcVhH. Wondering if the WHOA can offer a solution for your company? Please feel free to contact Wesley atterhaerdt@bierman.nl.

We congratulate Tore Hammerø on his promotion to Senior Lawyer from 1 January 2024.Tore has worked in Advokatfirmaet Varder since 2019. He works mainly with dispute resolution, construction, and real estate. Tore has particular expertise in construction law, where he assists the client, main contractors, and subcontractors through all stages of building and construction projects.

Relevant Law

In Czech law, the Civil Code and the Business Corporations Act are relevant for determining the scope of duties and responsibilities of the statutory body.

1. Liabilities in different areas 1.1. Corporate-civil liability 1. The liability of directors in the corporate context is regulated by the Spanish Corporate Enterprises Act (from now on “LSC”). 2. The LSC acknowledges different duties that any director must respect, regardless of the form adopted by the governing body to which company’s governance has been entrusted. 3. The breach of the duties of the Directors regulated in the LSC results in the liability of directors, which may be demanded by (i) the shareholders, and (ii) the corporate creditors. 4. Directors’ liability is generally a liability for fault or negligence, which means that the actions of the directors must cause damage to the corporate assets, shareholders or to the creditors. 5. Nevertheless, there is a case of objective liability of company directors that leads them to answer before creditors for company debts, which is the case of article 363 LSC, that is to say, the liability for not having dissolved and liquidated the company when it was legally obliged to do so. 1.1.1. Liability for breach of director’s duties 6. The first duty that the LSC states is a generic one referring to due diligence (art. 225 LSC). By this, the Spanish law obliges directors to perform their role with the diligence of an ‘orderly business person’. This concept constitutes a behavioral pattern that can be required to directors, as it is a real source of liability that enables interested parties to expect from directors to act as if they were real owners of the business. 7. Therefore, in practice, this concept is translated into directors’ duty to fulfill their tasks in accordance with the laws and by-laws, the right –although also duty—to demand and seek from the company the appropriate information necessary for them to complete their obligations, and the duty to possess the appropriate dedication and adopt the necessary measures for assuring the good management and control of the company. 8. In other words, 1) directors shall fulfill the functions that the law recognizes them, for example, drafting reports, annual accounts, convoking general meetings, etc., 2) supervise the most relevant management decisions of the Company, 3) demand all the necessary information for assessing Company’s decisions. 9. As already mentioned, the duty of due diligence is configured in Spain as a pattern of adequate behavior and does not entail any obligation of result. In fact, the LSC has introduced in its latest reform a rule designed to protect business discretion (the “judgement business rule” of common law) so that directors are protected if they act in accordance with the aforementioned standards of diligence, even if the results of the business are ultimately negative ones. 10. According to these standards, liability in Spain for breach of the duty of due diligence is quite limited and is circumscribed to very blatant cases of breach of such duty, for example, failure to take advice in decision making, acting in a manner totally contrary to such advice, breach of the law and the bylaws. 11. On the other hand, the LSC recognizes one last generic duty whose performance has very much to do with the principle of good faith; the duty of loyalty (art. 227 LSC). I 12. In a cursory way, it could be said that the present duty orders every director to always act in the best interest of the company, i.e. the Spanish legislator expects from directors to process the same fidelity as a representative who acts in fidelity to whom he represents. As a result, they are bound to exercise their powers for the solely purpose for which they were granted, to a duty of confidentiality, to fulfill their roles under the principal of personal responsibility, with freedom of opinion and judgement and independence with respect to third party instructions, and they are also bound to avoid situations in which conflicts of interest may arise. 13. Directors’ duty to avoid conflicts of interests is further developed by the Spanish law. Just to mention some of the circumstances in which this conflict of interest may arise, the law refers to directors’ inability to take advantage of the company’s business opportunities, to use company’s assets for private ends or to invoke their position as directors to unduly influence the completion of private transactions. 14. Regarding, director’s system of liability, The Spanish legal order holds directors personally liable with all their personal assets for any damage caused by their acts or omissions contrary to the law or the by-laws, or for having failed to complete any duties inherent to their roles, anytime there has been misconduct or negligence (art. 236 LSC).Such a liability has two dimensions: a) Ad intra: the type of responsibility that makes Directors answer before the Companyand its shareholders (art. 238 LSC) –corporate action—. Such corporate action can besubsidiarily exercised by creditors as well when not brought by the company or itspartners or shareholders if the company has insufficient assets to repay its liabilities. b) Ad extra: whenever Directors must answer for harms directly caused to shareholdersor/and creditors individually (art. 241 LSC) –individual action—. 1.1.2. Directors’ liability for corporate debts 15. Under LSC, there are some scenarios in which Corporate Companies are obliged to call for dissolution. 16. In that sense, whenever those scenarios are materialized, it is upon directors’ duties to convene a mandatory general meeting within two months to adopt the decision of dissolution or, they might also institute insolvency proceedings within two months of the date scheduled for the meeting, if not held, or from the day of the meeting. It is when directors fail to fulfill these obligations that are considered to be jointly and severally accountable, together with the company, for corporate obligations incurred after the legal cause for dissolution is forthcoming (art. 367 LSC) –joint liability of directors—. 17. Therefore, contrary to what happens in the previous liability (corporate actions and individual action), this liability does not require any harm, but solely the failure to dissolve the company or institute bankruptcy proceedings. 18. Consequently, directors’ liability for corporate debts is one of the greatest liabilities for corporate directors and one that deserves the most attention given the risks it entails. 1.2. Directors’ liability in bankruptcy proceedings 19. At the same time, within corporate liability there is a special liability that has very much to do with bankruptcy scenarios. 20. In case of insolvency, directors are obliged to file for insolvency proceedings within two months from the time they become aware of the Company’s insolvency. 21. Within the framework of the insolvency proceedings, one of its sections is dedicated to analyzing the liability of the directors in the insolvency situation. 22. As a specialty of directors’ corporate liability, directors’ liability in bankruptcy proceedings is limited to the analysis of whether the actions of the directors during their term of office have caused or aggravated the insolvency situation and, on the other hand, whether the directors have filed for bankruptcy within the legally established period or whether the delay in filing has caused or aggravated the insolvency situation of the company. 23. Therefore, the insolvency liability procedure in Spain is very complicated, but it basically tries to penalize those situations in which Directors: (i) have so delayed the filing of the insolvency proceeding that the insolvency situation has worsened as a result of this delay, with the corresponding detriment to the creditors who had contracted with the company during the period in which the company should have already been in insolvency proceedings, (ii) have carried out actions to the clear detriment of creditors such as (a) asset stripping the company (ii) payment of credits altering the par conditio creditorum (iii) payment of credits of `specially related persons’ (shareholders, administrators, etc.). 1.3. Criminal liability. 24. The Spanish Criminal Code includes various offenses related to the actions of the administrators and which fall within the scope of the so-called corporate offenses. 25. In this area the actions considered as an offense are: a. Falsification of documents b. Imposition of abusive or detrimental agreements to the corporate minority c. Imposition of abusive or detrimental agreements to the corporate minority d. Obstruction of the inspection or supervisory actions of the administration. Olga VázquezPartnerCorporate, Commercial and Bankruptcy o.vazquez@vialegis.com

Death and taxes, two certainties we all face. Yet planning for them can save us from costly pitfalls, especially when it comes to Inheritance Tax (IHT). Let’s debunk three common misconceptions that might be leaving your loved ones with a hefty bill. 1️⃣ Myth: Putting your house in the name of children will get around Inheritance Tax.2️⃣ Myth: Thinking you don’t need a will.3️⃣ Myth: Cohabiting is the same as marriage.

Singapore is an international commercial powerhouse with a variety of corporate incentives and tax breaks that entice many to incorporate their enterprises. This article introduces the legal obligations of directors under Singapore law. It is common for businesses with operations in Asia to elect to incorporate a Singapore corporation, to submit to the Singapore jurisdiction and to elect for their contracts to be governed by Singapore law. As such, it is relevant to have a basic understanding of the liability of a director of a Singapore corporation. Broad definition of a director: In Singapore, a director is defined under the Companies Act 1967 (the “Act”) to be any person occupying the position of director of a corporation or by whatever name called and includes a person in accordance with whose directions or instructions the directors or the majority of the directors of a corporation are accustomed to act and an alternate or substitute director. Regulatory requirement: Director appointment must comply with both the Act and the regulatory authorities including the Accounting and Corporate Regulatory Authority of Singapore. Directors’ duties: Every director, including nominee directors, owes the company a fiduciary duty to act with reasonable skill and care, in good faith, and always in the best interests of the company. Conflict of Interest This includes avoiding any real or potential conflicts of interest by the director, which may include the director’s next of kin, and when conflicts of interest cannot be avoided, it is the director’s duty to: (i) declare the nature, character, and extent of any potential conflicts of interest at a meeting of the company’s directors; or (ii) provide the firm with written notification if the director is engaging in anything that could result in a conflict of interest. Profiteering Due to their fiduciary duty, directors are not permitted to profit from their position as an officer or agent of the firm directly and indirectly. If this is shown to be true of any director, they may be personally liable to the company for any profit made or damage suffered by the company as a result of the exercise of powers for any improper purpose. Civil Liability In most cases, civil liability takes the form of a fine for a variety of civil wrongs, such as a penalty for non-compliance with regulatory requirements. A director may also be sued in civil court to obtain remedies such as restitution, property restoration, and injunctive relief. Criminal liability A director found in breach of his or her fiduciary duties in Singapore may be criminally liable to imprisonment for a term not exceeding twelve months. In addition, a director may be criminally liable for fraud or dishonesty, including making misstatements and disseminating misinformation about the company, wilfully omitting to state information or state new circumstances on the company. Criminal liabilities under such instances may include imprisonment for a term not exceeding three years. How to limit directors’ liability? A company may indemnify its directors against third party liability. However, any attempts to indemnify a director for negligence, default, breach of duty or breach of trust in relation to the company will be void under Singapore law. The best way for directors to avoid liability is to ensure that they act responsibly towards the company, taking every step possible to ensure the truth of one’s statement, declaring any conflicts of interest, abstaining from voting on matters of interest and keeping abreast with the regulatory requirements. If you would like any further information regarding incorporation of a company in Singapore, risk assessment of director’s liabilities, potential breaches, or ratification, please contact us at admin@flintbattery.com. Disclaimer: The information above is neither exhaustive nor conclusive and is not intended to constitute legal advice; instead, the information above is for general informational purposes only.

Background: The Companies Act 2013 (“Act”) was recently enacted to meet the modern-day corporate governance challenges arising from stakeholders’ expectations. This note provides an insight into the duties and liabilities of the directors under the Act and the practical measures they may adopt to comply with these duties. Meaning of the term “Director.” The term “director” has been defined under Section 2(34) of the Act as a director appointed to the company’s board. The Act provides for different categories of directors, such as whole-time directors, managing directors, independent directors, nominee directors, alternate directors, and women directors. Concept of “officer in default” The Act attributes the liability on the ‘officer in default’, which may include the directors. The Act introduced the concept of the “officer who is in default”, and most of the sections prescribing a penalty for non-compliance hold the ‘officer in default’ liable for such a penalty. The term is defined in section 2(60) of the Act as under: Section 2(60) of the Act: “officer who is in default”, for any provision in this Act which enacts that an officer of the company who is in default shall be liable to any penalty or punishment by way of imprisonment, fine or otherwise, means any of the following officers of a company, namely: — Notably [refer point (vi)], the directors of the company who are not responsible for the day-to-day management of the affairs of the company can be held liable only in those cases where the default or the contravention of the provisions of the Act 2013 have occurred with the knowledge of such director, attributable through the board processes. Directors’ duties under Section 166[1] Besides the liabilities, the Act codifies directors’ duties and the relevant provisions of the Act, which apply to all categories of directors, including independent directors. These include acting in accordance with the articles of a company, acting in good faith to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community and for the protection of the environment, avoid situations in which he may have a direct or indirect interest that conflicts, or possibly may conflict, with the interest of the company and so on shall be void. Directors’ liabilities, in general Class action remedy The company can initiate legal action against directors if they breach their duties. The Act has also introduced the novel concept of ‘class action suits’ under the Act. Under this concept, a group of shareholders (constituting a minimum of 100 shareholders or such minimum percentage of total shareholders as may be prescribed) can bring an action on behalf of all affected parties, against the company and/or its directors, for any fraudulent or wrongful act or omission of conduct on its/their part. Further, the Act proposes to set up a National Company Law Tribunal, which is expected to provide a speedier and more efficient remedy. [1] Contravention of provisions of Section 166 (relating to codified duties) is punishable with a fine which shall not be less than Rs.1 Lakh but which may extend to Rs.5 Lakhs.

Main rule in Dutch law is that a director or an officer of a legal entity is not personally liable for the debts of the legal entity. However, situations can arise in which this limitation of liability will be breached (‘piercing the corporate veil’). In our legal system we distinguish internal liability and external liability. Internal liability Internal liability embraces liability to other bodies of the entity such as the General Meeting of Shareholders. A director or officer is obliged towards the legal entity to perform its duties properly. He is responsible for the general state of affairs and is fully liable in case of mismanagement. The latter charge can only be refuted in case, no serious accusations can be made to the director or officer (also in view of the tasks assigned to others) and he has not been negligent in taking measures to avert the consequences of mismanagement. External liability External liability embraces liability to third parties outside the legal entity. Once again, our legal system distinguishes two situations: the normal situation and the situation in case of a bankruptcy. Normal situationIn the normal situation a director or officer is legally liable, besides the liability of the legal entity itself, to third parties with whom the legal entity has traded if the director or officer has committed an unlawful act (onrechtmatige daad, art. 6:162 BW) against that third party. The director or officer must then be personally blameworthy for serious misconduct. Various criteria have been developed for this in Dutch case law. In this situation an unlawful act exists if the director or officer knew or ought to have known when entering into an agreement, that the legal entity would not be able to meet its obligations under the agreement and that the legal entity would not provide sufficient opportunity for recovery. Another situation which can result in an unlawful act is when the director or officer deliberately prevents the legal entity from fulfilling its obligations. BankruptcyIn case of a bankruptcy a director or officer is liable for the full deficit if the trustee asserts and proves that the board has manifestly improperly performed its duties and it is plausible that it is an important cause of the bankruptcy. Importantly, where there is no proper accounting or administration or when the financial statements and/or the annual report are not published in time, it is assumed that there is mismanagement. In that case, mismanagement is also presumed to be the cause of the bankruptcy. The director or officer can only escape liability by demonstrating a plausible cause for the bankruptcy other than mismanagement.   Special liabilities Apart from these general liabilities, numerous special liabilities are regulated in specific law. One of them should be mentioned here specifically. It concerns the case where the board executes a resolution to dividend distribution while it knew or should reasonably have foreseen that the entity would no longer be able to pay its debts after the distribution. Legal entity as director Another important point is that for directors’ and officers’ liability, one can look through the legal entity. That is, if a legal entity is the director, liability will also fall on the director of that legal entity, and so on. This is possible until a natural person is found, so that as far as liability concerned, a natural person cannot hide behind a legal entity as director. There is much more to say about directors’ liability in the Netherlands but if you are or will be dealing with it and would like to have more information about it, please contact my office by phone or e-mail. J.M.A.J. ThielenBierman AdvocatenTel. 0031 344  677188 thielen@bierman.nl      M.R. van de ZandBierman AdvocatenTel. 0031 344  677188zand@bierman.nl

There are many different situations in which a director can be personally liable under English law.

Be aware that:
Negotiating international contracts is more than negotiating prices, technical specifications and delivery dates: the commercial and financial success of any (international) contract will also depend on the legal framework (qualification of the contract, liability clauses, applicable law, jurisdiction, regulatory rules on data protection, AML, consumer protection…).