The Implementation of the New Insolvency Regulation

Name: The Implementation of the New Insolvency Regulation | Improving Cooperation and Mutual Trust
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Improving Cooperation and Mutual Trust

Burkhard Hess Paul Oberhammer Stefania Bariatti Christian Koller Björn Laukemann Marta Requejo Isidro Francesca Clara Villata(Editor)

Nomos (Publisher)

1st Edition

Published on 9. December 2017

320 pages

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978-3-8452-8697-6 (ISBN)

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Cover
Introduction
I. Genesis of the Study
II. Methodology, scope and objective of the Study
III. Outline of the Study
1. Widening the scope of the Regulation: opening up for rescue culture (Part 1)
2. Coordination between main and secondary proceedings (Part 2)
2.1 Judicial cooperation: from soft law to innovative hard law
2.2 Synthetic proceedings: from practice to regulation
3. Group of companies: contractual flexibility versus procedural overregulation (Part 3)
IV. Distribution of responsibilities
Part 1: Scope of application
Università degli Studi di Milano
I. The scope of the Regulation
Article 1(1) EIR
1. Legal framework
1.1 A new European approach to business failure and insolvency
1.2 Pre-insolvency and hybrid proceedings
1.2.1 Article 1(1) EIR
1.2.2 Proceedings 'based on laws relating to insolvency for the purpose of rescue, adjustment of debt, reorganisation or liquidation'
1.2.3 'Public'
1.2.4 'Collective'
1.2.5 Which entail some kind of 'interference' upon the individual rights of the debtor and/or its creditors.
1.2.6 .and which may leave the debtor in possession
1.3 Territorial scope
2. Evaluation
2.1 Legal issues
2.1.1 The title of the EIR: is it still up-to-date?
2.1.2 The notion of insolvency (recital 17 EIR)
2.1.3 Scope of secondary proceedings
2.1.4 The COMI presumption for pre-insolvency proceedings
2.2 Practical problems
2.2.1 Pre-insolvency and hybrid proceedings before a 'judgment opening insolvency proceedings' is rendered
2.2.2 Article 34, 2nd s. EIR
2.2.3 The territorial scope
3. Theses and recommendations
II. The relationship between Article 1(1) of the Regulation (EU) No 2015/848 and Annex A
Articles 1(1), (3), 2(4), recital 9, Annex A
1. Legal framework
1.1 The framework under the EIR 2000
1.2 The proposals to amend the EIR 2000
1.3 The framework under the EIR
1.3.1 As to the nature of Annex A...
1.3.2 .and as to the amendment of Annex A
2. Evaluation
2.1 Legal issues
2.1.1 The underlying policy
2.1.2 The role of Article 1(1) EIR
2.1.3 Amendments to Annex A
2.1.4 A tentative alternative interpretation
2.2 Practical problems
2.2.1 The shortcomings of ordinary legislative procedure
2.2.2 How to deal with the difficulty to amend Annex A
2.2.3 Two problematic cases
2.2.4 The 'duty' to notify new national procedures
3. Theses and recommendations
III. The boundary between the European Insolvency Regulation and the Brussels Ibis Regulation
Article 1(1), recitals 7, 16 EIR
Article 1(2) lit. b) Brussels Ibis
1. Legal framework
1.1 Introduction
1.2 Obstacles to the dovetailing
1.2.1 Pre-insolvency proceedings and hybrid proceedings
1.2.2 Annex A EIR
1.2.3 The notion of 'insolvency-related' actions
1.3 The EIR 2015
2. Evaluation
2.1 Legal issues
2.1.1 Setting-up the relationship between Brussels Ibis and the EIR
2.1.2 Loopholes
2.1.3 Overlaps
2.2 Practical problems
2.2.1 Circumvention of the scope of the EIR by putting insolvency rules in general company law
2.2.2 Recital 16 and insolvency-related actions
3. Theses and recommendations
IV. Insolvency-related proceedings
Article 6, recital 35 EIR
Article 1(2) lit. b) Brussels Ibis
1. Legal framework
2. Evaluation: legal issues and practical problems
2.1 The notion of 'insolvency-related' actions
2.2 Recital 16 EIR and insolvency-related actions
2.3 Overlaps between the EIR and Brussels Ibis
2.4 Insolvency-related actions and secondary proceedings
2.5 Insolvency-related actions against third state defendants
3. Theses and recommendations
Part 2: Cooperation between main and secondary proceedings
Max Planck Institute Luxembourg
I. Instruments to avoid or postpone secondary proceedings
Articles 36 ff EIR
1. Legal framework
1.1 Introduction
1.2 The undertaking ('synthetic proceedings')
1.2.1 Procedural function and conflict of laws mechanism
1.2.2 Scope
1.2.2.1 Local assets and liabilities (scope ratione materiae)
1.2.2.2 Personal scope
1.2.2.3 Law referred to by an undertaking and third parties' rights in rem
1.2.3 Proposal and formal requirements
1.2.4 Approval
1.2.5 Effects
1.2.5.1 Direct effects of the undertaking as to the estate and the applicable law
1.2.5.2 Effects on the opening of secondary proceedings
1.2.5.3 Removal of local assets
1.2.6 Procedural safeguards
1.2.6.1 Remedies
1.2.6.2 Liability of an insolvency practitioner under Article 36(10) EIR
1.2.6.3 Information of creditors and publication
1.3 The stay of proceedings
2. Evaluation
2.1 Legal issues
2.1.1 Article 36 EIR as a non-mandatory rule?
2.1.2 Deferred and concerted secondary proceedings as an alternative option
2.1.3 Approval of an undertaking
2.1.3.1 Approval by the known local creditors
2.1.3.2 Voidability and replacement of an approved undertaking
2.1.3.3 Approval by the creditors of the main proceedings?
2.1.3.4 Approval of an undertaking after the opening of secondary proceedings
2.1.4 Undertaking and secondary proceedings
2.1.4.1 The start of time limit to request the opening of secondary proceedings
2.1.4.2 The court's criterion to reject the opening of secondary proceedings, Article 38(2) EIR
2.1.5 Undertaking and corporate group insolvencies
2.2 Practical problems
2.2.1 Criteria to be taken into account by an insolvency practitioner when giving an undertaking
2.2.2 Identification and information of local creditors / publication
3. Theses and recommendations
3.1 Scope of undertakings
3.2 Giving of an undertaking
3.3 Assessing the adequacy and efficacy of Article 36 EIR
3.4 Identifying and informing (local) creditors
3.4.1 Creditors should be informed of.
3.4.2 Means of communication
3.4.3 Creditors' information on the (dis-)approval of the undertaking
3.5 The start of time limit to request the opening of secondary proceedings (Article 37(2) EIR)
3.6 Temporary stay of the opening of secondary proceedings
3.7 Implementing Regulation
II. Cooperation, Communication, Coordination
Articles 41-44 EIR (single debtor)
1. Introduction
2. Legal framework
3. Recommendations
3.1 To the European Commission
3.1.1 Introducing and explaining the rules
3.1.2 Raising awareness and promoting the use of soft law instruments
3.1.3 Spreading the knowledge about case law
3.2 To the national lawmaker
3.2.1 Taking stock
3.2.2 Removing obstacles, paving the way
3.2.3 Valuable clarifications
pro-cooperation orientations
3.3 To the national interpreter and authorities applying the law
3.4 To the academia
III. Protocols
Articles 41 f EIR
1. Introduction
2. Legal and economic framework
2.1 'Agreements or protocols': scope of the analysis
2.2 Cooperation 'not incompatible with the rules applicable to each of the proceedings' - legal basis for the conclusion of agreements or protocols
2.3 Content of an insolvency protocol: derogation from the coordination rules of the EIR?
2.4 Insolvency protocols and protection of local creditors' interests
2.5 Protocols and Article 36 undertakings: comparative advantages and disadvantages
3. Recommendations and guidelines
3.1 Circumstances supporting the use of insolvency agreements or protocols
3.2 Negotiations
3.3 Authorization and parties to an insolvency agreement or protocol
3.4 Language of the insolvency agreement or protocol
3.5 Terminology and interpretative rules
3.6 Determining the purpose of the insolvency agreement or protocol
3.7 Issues to be addressed in insolvency agreements or protocols under the EIR
3.7.1 Communication
3.7.2 Preservation of the debtor's assets
3.7.3 Notification of the debtor's creditors
3.7.4 Lodgement of the creditors' claims by insolvency practitioners
3.7.5 Verification of the debtor's liabilities
3.7.6 Administration of the insolvency estate
3.7.7 Preventing conflict of powers among insolvency practitioners
3.7.8 Distribution of the proceeds
3.7.9 Conflict-of-laws issues
3.7.10 Costs of the proceedings
3.8 Legal effects and effectiveness of insolvency agreements or protocols
3.9 Flexibility of insolvency agreements or protocols
3.10 Safeguards
3.11 Dispute resolution clauses
Part 3: Insolvencies of groups of companies
University of Vienna Articles 56 ff EIR
I. Introduction
II. Jurisdiction with respect to insolvencies of groups of companies
1. Determining the COMI of a member of a group of companies
1.1 Legal framework
1.2 Recommendations and guidelines
1.2.1 Recommendations
1.2.2 Guidelines
2. COMI migration
2.1 Legal framework
2.2 Evaluation
2.3 Recommendations and guidelines
2.3.1 Recommendations
2.3.2 Guideline
3. The definition of 'group of companies' in Article 2 EIR
3.1 Legal framework
3.2 Evaluation
3.3 Recommendations and guidelines
3.3.1 Recommendations
3.3.2 Guidelines
III. Coordination between insolvency proceedings relating to group members
1. Legal framework
2. Evaluation
3. Recommendations and guidelines
3.1 Recommendations
3.2 Guidelines
IV. The new group coordination proceedings
1. Legal framework
2. Evaluation
3. Recommendations and guidelines
3.1 Recommendations
3.2 Guidelines
V. Conflict of laws
1. Legal framework
2. Recommendations and guidelines
2.1 Recommendations
2.2 Guideline
Annex: Expert Contributions
Annex I: Interpreting and amending Annex A to Regulation 848/2015
Avv. Giorgio Corno
1. Insolvency proceedings which fall within the scope Annex A of Regulation 848/2015
2. Italian insolvency proceedings which fall within the scope of Regulation 848/2015
3. Italian proceedings which may be included or qualified as a sub-category of insolvency proceedings listed in Annex A
4. Does 'convenzione di moratoria' fall within the scope of insolvency proceedings as defined in Article 1(1) Regulation 848/2015?
5. Effects of a 'convenzione di moratoria' on foreign dissenting banks and financial institutions
Annex II: The system of insolvency registration in the EU Insolvency Regulation (Recast)
Professor Dr. Bob Wessels
1. Introduction
2. Aim of interconnected insolvency registers
3. Part of existing effort in building EU-wide interconnection of national insolvency registers
4. Establishment of insolvency registers
5. Mandatory information
6. Consumers
7. Legal effect of information in the registers
8. Interconnection of insolvency registers
9. Conditions of access to information via the system of interconnection
10. Conclusion
Annex III: Opening statement on the coordination and cooperation of main and secondary proceedings
Professor Dr. Christoph Thole
1. Key features of the new law
2. Are secondary proceedings useful?
3. The undertaking (Articles 36 ff EIR)
4. The new law on cooperation and communication (Articles 41 ff EIR)
Annex IV: From 'prisoner's dilemma' to reluctance to use judicial discretion: the enemies of cooperation in European cross-border cases - the situation of Italy, and beyond
Professor Dr. Renato Mangano
1. Introduction
2. Article 31 EIR 2000, and its application in Italy
3. Taking lessons from the Illochroma and Eurofood cases: legal uncertainty produces 'prisoner's dilemmas'
4. Taking lessons from reluctance to conclude agreements and protocols: accepting that these forms of cooperation require courts and insolvency practitioners to make a choice between alternative rulings and activities
5. Explaining Articles 41-44 EIR within legal reasoning
5.1 Improvements aimed at specifying the logic of the duty of cooperation and information
5.2 Improvements aimed at specifying the limits of the duty of cooperation and information in terms of consistency with the system as a whole
6. Concluding remarks: from cooperating 'in the shadow of soft-law' to cooperating 'in the shadow of hard-law'. Corollaries
7. Coda: Spontaneous comments on the relevant sections of the 'Annotated Guidelines'
7.1 Article 36 EIR
7.2 Articles 41-44 EIR
7.3 Protocols
Annex V: Opening statement on the new rules for the insolvency of groups of companies
Professor Dr. Reinhard Bork
Annex VI: Insolvency of corporate groups under the recast Insolvency Regulation: progress or reason for concern?
Professor Irit Mevorach
1. Introduction
2. The European Insolvency Regulation (2000): no provisions for groups
3. The practice since 2002: group centralizations
4. The case of Interedil (2011): adoption of central administration as a key connecting factor
5. The parliament proposals (2011): centralization as the primary solution
6. The recast Insolvency Regulation (2015): a shift to cooperation and coordination
7. Progress or concern?
8. Conclusion and a way forward
Bibliography
1. CJEU case-law
2. National case-law
3. Literature
4. Legal texts
5. Other

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The Implementation of the New Insolvency Regulation

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