Compliance clauses within supply chains
Compliance clauses are nowadays a standard component of many (framework) supply agreements between companies. When introducing these clauses into contract negotiations, they are often extremely one-sided and present a high risk for the clause addressee. The following article demonstrates approaches and arguments which can help to achieve a proper limitation of a compliance clause.
Loss of procedural capacity of a private company limited by shares sued in Germany
By order of 19 January 2017 (file reference: VII ZR 112/14), the Federal Court of Justice [Bundesgerichtshof – BGH] declared a private company limited by shares sued in Germany which was removed from the companies register in England (foundation state) incapable of being a party to proceedings. The order also gives occasion to analyze the […]
Resignation of the managing director of a “one person limited liability company” (“Ein-Mann-GmbH”): risk of invalidity due to abuse of law
Basically, the managing director of a limited liability company can quit his position as managing director at any time and without notice period by simple notification. However, such resignation from his position is subject to certain restrictions. In particular, if the resigning managing director is the sole shareholder and managing director of the limited liability […]
Clarifying judgment of the Federal Court of Justice (BGH) on the power of representation for actions of a stock corporation (AG) towards members of the management board
Pursuant to section 112 of the German Stock Corporation Act (AktG), an AG is represented by the Supervisory Board if it acts towards the Management Board. The BGH has recently ruled on when there is no such action towards the Management Board by applying the principles developed with regard to self-dealings in accordance with section […]
In general, shareholder loans are not taken into account as subsequent acquisition costs within the scope of Section 17 EStG anymore
By its judgment of 11 July 2017 – IX R 36/15, the German Federal Fiscal Court (BFH) has fundamentally changed its jurisdiction regarding the clasification of equity-replacing financial aids of shareholders to their company as acquisition costs within the scope of section 17 of the German Income Tax Act (EStG). Financial aids are, for example, […]
Warranty & indemnity insurance for company sales – genuine added value or unnecessary passing fad?
Warranty & Indemnity insurances (W&I) play an increasingly higher role in company sales. The parties to an M&A transaction should familiarize with the fundamental operating principle of this “tool”. This is particularly essential, because meanwhile many sellers require a W&I insurance as a precondition in order to receive a bid during a bidding process.
ALL UNCLEAR – BGH (FEDERAL COURT OF JUSTICE) RULING ON THE ARBITRABILITY OF DISPUTES REGARDING THE VOIDABILITY OF PARTNERSHIPS’ RESOLUTIONS
In the event of disputes about the voidability of shareholders’/partners’ resolutions, the parties are usually interested to clarify such dispute fast and silently without recourse to the ordinary courts. However, the special features of German company law made arbitration agreements/clauses for such disputes difficult, especially for corporations such as a GmbH (limited liability company), but […]
Stricter rules for the review of foreign investments in Germany
The German Federal Government has enacted stricter rules for the review of foreign investments in Germany with effect as of 18 July 2017. The review criteria remain for the time being whether or not a foreign investment endangers the national security or the public security and order of the Federal Republic of Germany. The interpretation […]
Risk of double claims when issuing a hard (external) letter of comfort
Letters of comfort are widely used to secure receivables. From the protection provider’s perspective the particular advantage over other means of securing – such as sureties or guarantee bonds – is the flexibility that allows free decisions about the form of fulfillment of the liability duty accepted. In order to avoid that this advantage becomes […]
The requirements of the new General Data Protection Regulation
From May 2018 the General Data Protection Regulation (GDPR) applies, which standardizes and completely revises the data protection law within the EU. In this process the German data protection law, in particular the Federal Data Protection Act, is automatically superseded. The good news is that the European legislator followed German law in many aspects. The […]