Following Mülbert's presentation, the first discussion concentrated mainly on the efficiency of legal (minimum) capital in contrast to alternative solutions for creditor protection.

This issue of EBOR presents to a wider audience the papers and proceedings of a symposium on ‘Efficient Creditor Protection in European Company Law’, which took place from 1 to 3 December 2005 at the premises of the Max Planck Institute in Munich, as a joint venture of Munich’s Ludwig Maximilians University and the Max Planck Institute for Intellectual Property, Competition and Tax Law. As the organisers of this conference, we were proud and delighted that so many outstanding scholars from Europe and the United States agreed to participate, give presentations, make comments and contribute to the discussions, although we had nothing to offer but a lot of preparatory work, uncomfortable winter travel and the prospect of exchanging some views on questions of corporate law reform in our conference room. We would also like to express our gratitude to the Max Planck Society for the Advancement of Sciences for its generous financial support of the conference and this publication.

Summarizing the many thoughtful papers presented at this conference is a difficult task for an outside observer of European law reform. In lieu of bad comments on good papers, I offer instead my own observations on several of the conference's principal themes.

The first afternoon session included three presentations addressing the issue of whether regulatory requirements are required or helpful to ensure efficient creditor protection. The chairman, Marcus Lutter of the University of Bonn, introduced the afternoon's topic by highlighting the positive effects a legal capital concept might have. John Armour of Cambridge University questioned this concept in his presentation by arguing that such a regime was outdated in today's economy. Holger Fleischer of the University of Bonn followed with additional critical remarks. In his comments, he referred to the distinction between voluntary and involuntary creditors, the latter having no opportunity to protect themselves by means of a contract. One example given were tort victims. John Armour focused strongly on a similar distinction; however, he referred to them as adjusting creditors and non-adjusting creditors. Most participants agreed on the major relevance of this distinction.

The first round of discussion focused on the presentation by Rickford and Schön's commentary on it. It concentrated on the question of how to determine distributable profits and whether to apply a balance sheet test, a solvency test or a combination of both.

Many participants pointed out that management is already under a duty to attempt a turnaround, including an out-of-court workout, in most European jurisdictions. At present, it seems unclear, however, when such a duty ‘in the vicinity of insolvency’ would run specifically to the company's creditors. It was emphasised that the ‘probability of insolvency’ test proposed by Eidenmüller is not intended to trigger formal insolvency proceedings; rather, it should only give rise to the directors' duty of care to creditors in managing the company – which, as the case may be, requires directors to continue or cut back business operations, to undertake restructuring and refinancing efforts and/or to initiate formal bankruptcy proceedings. The duty should not only require directors to take action but also to abstain from ‘risk-shifting,’ i.e., from increasing the company's business risk to the detriment of creditors. Because bankruptcy of small and medium-sized corporations often entails individual insolvency of directors, criminal and administrative sanctions – including director disqualification – should be applied to ensure effective deterrence.