Die opskorting van omgewingsgedinge in insolvensie

Abstract

One of the goals of environmental law is the immediate clean-up, remediation and restoration of environmental damage, the compensation of such damage and to attribute the obligation to pay for the costs of the clean-up to those responsible for the problem. Insolvency law, on the other hand, is designed inter alia for the benefit of the creditors of the insolvent, to protect them in this situation by maximising the proceeds of the insolvent estate, and the equal treatment of creditors in accordance with the prescribed order of priority. In addition, the law of insolvency is designed to give the debtor the opportunity to make a fresh start after the completion of the liquidation process by discharging all his debts that arose before sequestration. It is clear that the objectives of both insolvency law and environmental law may be in conflict in this regard. It is particularly the insolvency law principles of the automatic stay of pending civil proceedings, the equal treatment of creditors and the discharge of all debts that occurred prior to sequestration/liquidation, which must be investigated in the light of their effect on environmental obligations. Which regime will ultimately prevail in a situation where these two come up against one another? This article aims to find a golden mean by a "balancing" of the various policies, to ensure that a healthy balance is pursued between the public policy in environmental legislation and the relief offered by the insolvency law.