The INSOLAD Rules of Practice for Bankruptcy Trustees set out general principles that guide the actions of the bankruptcy trustee. The bankruptcy trustee:
- is independent and has integrity;
- be guided by the interests of the estate and take into account interests of a social nature;
- strives for objectivity in his judgment;
- performs his work carefully, competently, energetically and efficiently; and
- acts in a proper manner.
Acting contrary to these (open) standards does not automatically mean that the bankruptcy trustee has acted unlawfully, but it does play a role in the assessment of whether this is the case.
liability pro se
The standard for personal liability of the bankruptcy trustee was laid down in the so-called Maclou judgment of April, 19 1996, in which the Supreme Court ruled:
“These special characteristics of the bankruptcy trustee's duties mean that his personal liability, if any, must be tested against a standard of care that is tailored to them. This standard entails that a bankruptcy trustee should act as may reasonably be expected of a bankruptcy trustee with sufficient insight and experience who performs his duties with due diligence and commitment..”
When applying the Maclou standard, all the circumstances of the case must be taken into account and the special position of the bankruptcy trustee, who is allowed a relatively large degree of freedom in the performance of his duties. The question of whether or not a bankruptcy trustee has acted like one who 'has sufficient insight and experience and carries out his duties meticulously and diligently' must be tested with restraint.
liability qualitate qua
The liability of the bankruptcy trustee, in his capacity as trustee, must be tested against the requirements of article 6:162 of the Dutch Civil Code: the unlawful act. Examples of a wrongful act by a trustee are the failure to respect a retention of title, a reserved pledge or a right of reclamation.
The liability of the bankruptcy trustee, in his capacity as bankruptcy trustee, gives rise to an immediate claim on the estate. This therefore creates an estate debt. An estate debt need not be submitted for verification. An estate debt must be paid from the assets of the estate before any distributions are made to the other creditors.