It enhances the concern from what extent the new supervisory part is also wade hand in hand having several other character, such as the adjudicatory you to definitely
Issues may also develop in the context of treating the newest insolvency house (Article 69 of the DBA). Pursuant to that particular supply, financial institutions, the brand new creditors’ committee together with borrower (or even the debtor’s agents) 33 33 Wessels (significantly more than notice 16), paragraph 4228. normally difficulties people operate of insolvency professional with the supervisory judge otherwise instigate your order on supervisory legal that insolvency specialist should would a particular work or is abstain from an intended operate. Nevertheless, this type of serves, the acts challenged and acts instigated, have to belong to the new insolvency practitioner’s courtroom task to manage and liquidate brand new insolvency home. 34 34 Ibid., section 4225. Pick including Marinus Pannevis (ed), Polak’s Insolventierecht (14th edn) (Wolters Kluwer, 2017), section 7.step three.six.step one. That it supply puts the brand new insolvency practitioner in control over those people when you look at the whose appeal they have been designated, 35 thirty five “Het [Article 69 DBA] stelt den curator onder de voortdurende controle van hen when you look at the wier belang hij try aangesteld,” whereby see the Explanatory Memorandum of your Dutch Insolvency Work within the Sebastian Kortmann and you can Dennis Faber (eds), Geschiedenis van de Faillissementswet. Heruitgave van Van der Feltz II (Wolters Kluwer, 2016), 8–nine. for example it will supply the the latter stars having a beneficial quick and simple tool so you’re able to influence the latest administration over the bankrupt property. thirty six 36 Dutch Finest Legal , 161: “(…) biedt aan de daarin genoemden een eenvoudige dentro de snelle mogelijkheid invloed uit te oefenen op het beheer more de- failliete boedel durante om, zo zij menen dat bij dit beheer fouten worden gemaakt, deze te doen herstellen from voorkomen.” Blog post 69 of the DBA find your supervisory court has when deciding to take a decision within 3 days. When you take a choice within the a blog post 69 techniques, this new supervisory judge effortlessly serves significantly more while the an adjudicator than while the a management.
The newest confluence of your own supervisory character plus the adjudicatory character for the Article 69 strategies has been criticized regarding the Dutch legal literature. This new issue revolved around the look of partiality of your supervisory judge. Partiality can be difficulty if supervisory court takes a good decision out of a post 69 demand in the place of reading each party away from brand new disagreement, but by applying low-public records and you can suggestions from everyday (preliminary) services on the insolvency professional. 37 37 See such as, Sijmen de- Ranitz, “De- curator als onderhandelaar,” inside the H. Schoordijk ainsi que al. (eds), Rond de- tafel. De juridische kaders van het onderhandelen. Bogaerts durante Groenen-bundel (Kluwer, 1999), 55; Wessels (above notice 16), paragraph 4226.
step 3 Strategy Of your EMPIRICAL Research
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).