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Unqualified Directors in Insolvency: A Comparative Study on the Desirability of Civil Law Directors' Disqualification in the Netherlands

Authors


  • Tom Reker recently graduated from the Leiden Law School, Leiden University, Leiden, The Netherlands. He has been working as a junior researcher under the supervision of Professor Bob Wessels. He thanks professor Wessels for his comments on an earlier draft. The opinions expressed in this article are the personal views of the author.

Abstract

The current global economic, and therefore political, climate has given rise to legislative responses within insolvency law, aiming to increase the legal arsenal against fraudulent behaviour. A recent proposal of the Dutch government to introduce a civil law disqualification instrument is a quintessential example of this tendency. In this article, the usefulness of this proposal is questioned. The usefulness of the civil law instrument is tested by comparing it with its Dutch criminal law equivalent. Furthermore, several proposals for alteration, based on foreign counterparts, will be formulated in order to increase the effectiveness of the aforementioned arsenal as a whole. Comparisons are made with similar instruments in Australia, England, Germany and the USA. Throughout the article, it will be asserted that, in order for the proposal to optimally reflect the principles of effectiveness and its civil law nature, a reallocation of certain elements of the proposal to its criminal law equivalent is required. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd

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