2nd OSE Symposium
Speaker: Attorney Dr. Stefan Schuppert, LLM (Harvard) (Munich)
Moderator: Attorney Christian Kast (Munich)
During the 1st symposium on software escrow, the fact that foreign parties may also be involved was not taken into account when considering the individual basic constellations. Dr. Stefan Schuppert, LLM (Harvard) took this as an opportunity to show which law applies in each case and what special features the legal practitioner is confronted with in US insolvency law, also briefly discussing the basics of French, British and Italian law.
According to the principle of lex fori concursus (see section 335 InsO), the insolvency law of the country in which the insolvency proceedings were opened is generally applicable. If only the escrow agent is from abroad, German insolvency law applies in accordance with the above-mentioned principle. However, the foreign regulations regarding the escrow agreement must then be taken into account when applying German law.
The SPV (Special Purpose Vehicle) was presented as an alternative to escrow in the international area. In the subsequent discussion, the practical effects of applying US insolvency law, which offers significantly better conditions with regard to escrow, were discussed in depth.