The purpose of the present article is to examine and discuss the
Circular letter 11/3 dated 21 October 2011 as issued by the RCS.
Pursuant to this circular letter, the RCS announces that it will
further refuse the filing of resolutions in revocation of voluntary
winding-up. Most interestingly, this issue had been already
discussed in the context of summary proceedings in 2006. Pursuant
to a référé order of 19 May 2006, the
Vice-President of the District Court of Luxembourg had ordered the
RCS to accept the filing of such resolutions. Based on this
judicial decision, the revocation of voluntary winding-up was in
practice from time to time.
The main legal argument raised by the RCS is based on Article 141, al. 1, of the law on commercial companies. According to this legal provision, further to their winding up, commercial companies are deemed to exist for their liquidation. This is a classical argument which has been used, in particular, by prominent Belgian scholars to refuse the revocation of voluntary winding-up. However, a refined review evidences that this classical doctrine is subject to challenge. In particular, a contractual approach of commercial companies, as such approach prevails in Luxembourg corporate law, is likely to favour the right to revocation. In any case, it may be wondered whether the power of control of legality, as vested by law to the RCS, is the most appropriate instrument to rule out such a highly discussed legal topic.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
