Is there sufficient room within the current bankruptcy procedure to consider societal interests?
Jessie Pool wrote about this, among other topics, in her article ‘Maatschappelijk verantwoord vereffenen: belangenpluralisme bij de maatschappelijke taakuitoefening van de curator” (Socially responsible settlement: Pluralism of interests in the social performance of the insolvency practitioner’s duties) (Tijdschrift voor Insolventierecht 2022/20).
In this article, she argued that this room is actually insufficient. In order to promote socially responsible bankruptcy, she argued that both a statutory enshrinement of social duty performance that may come at the expense of the recovery of joint creditors, and adequate compensation for social performance of duties are necessary.
In a response to that article, Miranda Van Eekelen-Atema states that, in her opinion, there is indeed room for the consideration (and prevalence) of societal interests. She believes that while an affirmation of this in the Bankruptcy Act can help insolvency practitioners to also act in this way, the ultimate weighing of interests should be left to insolvency practitioners because, due to the highly casuistic nature of bankruptcies, these considerations cannot be made in the abstract.
Pool argues in her postscript that while there may be sufficient scope in theory to consider societal interests, the balancing of interests by insolvency practitioners does not promote socially responsible liquidation, given the low willingness of some insolvency practitioners to consider societal interests. The responsibility to consider societal interests has only a marginal significance in the current framework of standards, which is fulfilled by some insolvency practitioners and only partially or not at all by others.
Pool believes that we can no longer afford the non-committal attitude of insolvency practitioners when considering societal interests in the settlement of bankruptcies. At the same time, a solution must be found for the fact that insufficient compensation exists for the social performance of duties. As long as efficient use of money and resources is a valid argument for insolvency practitioners to refrain from socially responsible liquidation, it is to be hoped that social interests only play a role in bankruptcies with an estate in which there are some assets to distribute.
The article by Jessie Pool 'Maatschappelijk verantwoord vereffenen: belangenpluralisme bij de maatschappelijke taakuitoefening van de curator' is available here (TvI 2022/20).
The response (in Dutch) from Miranda Van Eekelen-Atema is available here (TvI 2022/27).
Jessie Pool's postscript (in Dutch) is available here (TvI 2022/28).