Applicable Law for Liability Claims in Insolvency Proceedings: Directors’ Duties of Care and Pre-Insolvency Obligations
Applicable Law for Liability Claims in Insolvency Proceedings: Directors’ Duties of Care and Pre-Insolvency Obligations

Author(s): Tomáš Moravec
Subject(s): Law, Constitution, Jurisprudence, Law on Economics, EU-Legislation, Commercial Law, Court case
Published by: ADJURIS – International Academic Publisher
Keywords: applicable law; directors’ liability; duty of care; insolvency law;
Summary/Abstract: This paper examines the determination of applicable law for liability claims in pre-insolvency proceedings. It analyses the boundary between the company law statute (lex societatis) and the insolvency statute (lex concursus), with particular emphasis on directors’ liability for breach of the duty of care and on pre-insolvency obligations. Building on the case law of the Court of Justice of the European Union, the paper highlights the material approach to conflict-of-law qualification. Further attention is devoted to the duty to file for insolvency, the shift of loyalty from shareholders to creditors, and the risks of forum shopping. A solution may lie in the minimal harmonization of selected rules at the EU level, or alternatively through clearer guidance in national conflict-of-law norms.

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