Liability of investors: reorganization of ship funds, reclaiming distributions, limited partner liability for return of contributions
Recently, we have been increasingly often approached by clients because of liability for past distributions from ship fund investments in the form of limited partnerships (or trust models). The circumstances here are very different. In some cases, the ship fund company itself takes action against its shareholders and investors for the repayment of distributions (so-called restructuring case). The basis for this should often be the articles of association (e.g. from non-transparent loan clauses there). In other cases, it is the insolvency administrator who asserts the rights of the creditors of the ship fund company and takes action against the limited partners, who may seek to enforce claims for indemnification by trust companies against the trustors. In all these cases, there is a mandatory relationship between the so-called internal relationship - in which there is no obligation to make additional payments and/or repayment without an express provision - and the external relationship - the so-called limited partner liability for repayments on the liability deposits made (cf. §§ 171, 172 HGB ) – to distinguish.
In a judgment, the 2nd Senate of the Federal Court of Justice strengthened the rights of investors in restructuring cases (cf. BGH, judgment of March 12, 2013 - II ZR/11) and decided that profit-independent distributions to limited partners in the legal form a ship fund organized by a GmbH & Co KG can only be reclaimed by the company if this is expressly provided for in the articles of association.
The issue on which the decision was based was that the articles of association of the limited partnership (KG) stipulated that the company, regardless of a profit or loss reported in the annual financial statements, should, in the event that the liquidity situation allows it, after a certain period incorporation of the Fund is expected to distribute to the Partners amounts to a specified amount of a percentage of the limited partnership capital, which will be posted to "Loan Account". If a shareholder waived these withdrawals in view of the resurgence of liability, "the formation of the loan liability for him should be omitted".
In cases such as the facts decided by the BGH, it is essential to distinguish between the internal relationship of a KG and the external relationship. In the case of a KG, according to the BGH, a statutory claim for repayment of payments made according to the model of § 62 AktG, § 31 GmbHG is out of the question, which is why everything depends on the internal contractual relationship. The difference between a distribution to the shareholders and the granting of a loan must also be taken into account. While a distribution ultimately becomes part of the recipient's assets, the granting of a loan gives rise to a claim for repayment. If it is agreed in the articles of association that payments are also made without profit, the contract determines whether these are real and final distributions or whether they have to be repaid. In cases where there is no clear contractual regulation, it depends on the interpretation of the contract:
The terms 'distribution' and 'withdrawal' used in the Articles of Association do not indicate a reservation of reclaim. The use of the term "loan account" also does not automatically imply that loan liabilities are posted to this account at the expense of the investor. Accordingly, the term "loan liability" does not necessarily suggest such an understanding. If the articles of association are interpreted as required, according to the BGH, genuine distributions can be assumed and the company has no claim to repayment of the distributions. In particular, it cannot be assumed without further ado that the investors want to grant themselves temporary loans from their own investments.
However, the situation is different if creditors of the KG or the insolvency administrator take action against the investors. In these cases, it is about the limited partner liability in the external relationship, which is based on §§ 171, 172 HGB. There are other points of attack and defense to consider here. In particular, regulations in the internal relationship (e.g. the articles of association) are typically irrelevant.