Academic Forum Online Lecture 2021 by Prof. Nuria Bermejo
"Public Creditors in Preventive Restructuring Frameworks: Considerations in the light of the Pandemic Crisis" by Professor N. Bermejo, 20 May 2021, from 16:00 - 17:20 CET.
A report on Prof. Bermejo's presentation by Paul Omar and Myriam Mailly can be read here.
View the presentation slides here.
Watch a video of the lecture here:
Nuria Bermejo is Professor on Commercial Law (“Profesora Titular”) at Universidad Autónoma de Madrid (Spain) since 2008. From March 2008 to October 2015, she was Legal Secretary (“Référendaire”) at the EU General Court (Luxembourg). She has lectured in other Spanish universities, as well as in European higher education institutions and South-American universities.
She obtained her Law Degree (1994) and PhD Degree (2000) from Universidad Autónoma de Madrid. She is an active member of different Research Projects related to Insolvency and Corporate Law. Since the publication of her first book (
Créditos y quiebra, Civitas, Madrid, 2002), she has published widely in scientific journals and books in these fields. She is one of the scientific editors of the
Revista de Derecho Concursal y Paraconcursal and Member of the
Instituto Iberoamericano de Derecho concursal.
Her most recent work includes the following publications: with F. Garcimartín, “Involving Secured Creditors in Restructuring Proceedings”, in P. Omar/J. Gant (eds.)
Research Handbook on Corporate Restructuring, (E. Elgar, 2021, forthcoming), “El apoyo público a la solvencia empresarial y el privilegio del crédito público (o lo que cabe esperar de este privilegio)”,
Anuario de Derecho Concursal (2021); “Los protocolos en la reestructuración de los grupos de sociedades”,
Anuario de Derecho Concursal (2021) and “Protocols in the Restructuring of Groups of Companies” (Springer, 2021, forthcoming); “Set-off and Insolvency in the Context of Intermediated Debt Securities: the Spanish Approach”,
Journal of International Banking and Financial Law (2020); “Separación de activos, garantías intragrupo e insolvencia”, in
Las reestructuraciones de las sociedades de capital en crisis (Thomson-Reuters, 2019); “La prenda de créditos futuros y los contratos pendientes de ejecución en el concurso”,
InDret (2018).
She has also edited the book “
Las reestructuraciones de las sociedades de capital en crisis (Thomson-Reuters, 2019), with Professors Martínez-Flórez and Recalde.
Academic Forum Online Conference 2021
20 January 2021 - 16:00 to 17:40 (CET) - Online Event - Zoom
Read a report of the conference by Paul Omar and Myriam Mailly here.
Watch a video of the conference here:
'Harmonizing Insolvency Regimes in the Prism of European Investment Law'
By Prof. Antonio Leandro
Presentation slides are available here.
Antonio Leandro is Associate Professor of International Law at the Department of Economics, Management and Business Law of the University of Bari (Italy) with National Scientific Qualification as a Full Professor. He mainly focuses its professional activity on private international law, cross-border insolvency, international arbitration, and international and European investment law. His bibliography includes three books, four co-editions, and some more 170 papers among notes, commentaries, articles and book chapters. He sits in the editorial boards of various journals and is co-director of a scientific series. He has been member of the EC Group of experts on the attachment of bank accounts. He is: conferee of the CERIL (Conference on European Restructuring and Insolvency Law); member of the International Insolvency Institute; coordinator of the Study Group on Cross-border Insolvency and National Legal Orders for the Italian branch of the International Law Association. He served as trainer for the European Judicial Training Network. He cooperated with the Committee appointed by the Italian Ministry of Justice with the task to revise the Italian insolvency law.
Abstract:
Directive (EU) 2019/1023 on restructuring and insolvency (“Directive”) has been adopted to harmonize the national frameworks of the Member States so as to make national means facing business crises more efficient throughout the EU territory.
Looking through its Preamble, the Directive seems to shift the paradigm of the virtuous forum-law competitiveness – which means for Member States to run one against another in attracting business and investments from abroad (even from third countries) – into a wider rationale that ends up protecting also general interests of EU investment law.
The EC Proposal of 2016 and the Directive’s preamble emphasize, in fact, the purposes of ensuring the correct functioning of the internal market and, particularly, the efficiency of the Capital Markets Union. More in detail, the differences among Member States as to restructuring, insolvency and discharge of debt, are deemed to hamper the free movement of capital and services, the freedom of establishment and, accordingly, the choice of making direct investment in the EU space taken as whole.
In the same vein, the EC Communication “A Capital Markets Union for People and Businesses - New Action Plan” of 24 September 2020 stressed how “the divergence between national insolvency regimes is a long-standing structural barrier to cross-border investment” (p. 12, para. 3), and that “harmonization of certain targeted areas of national insolvency rules or their convergence could enhance legal certainty” (p. 13).
Admittedly, investors keep away from national legal orders whose provisions are uncertain or in which the insolvency proceedings are cost-time consuming and complex. Access to credit is easier in some States than in others, thereby triggering an unduly disparity in the treatment of entrepreneurs. The aim to efficiently handle crises of international groups of companies may suffer from the coexistence of different rules and from the fact that costs and times of proceedings vary depending on the Member State in which each company carries out its activity.
Besides, one may maintain that swift, smooth and efficient harmonized restructurings (as well as full-blown in-court insolvency proceedings and discharge of debt regimes) enhance the Fair and Equitable Treatment of investors under the lens of most bilateral or multilateral investment treaties, including Free Trade Agreements that the EU has entered into with third countries to also address the treatment of foreign direct investments..
Against this background, the question arises on whether, by means of the Directive, the EU really wishes to shrink the competition between Member States or rather to balance it with the general interest of making sure that quality and effectiveness of insolvency systems might also satisfy the EU investment policies. In order to answer this question, several features of the interconnection between insolvency law, Capital Markets Union and investment law need to be addressed.
'Restructuring and Stays - Moving Forward in Europe ?'
By Prof. Gerard McCormack
Gerard (Gerry) McCormack is a Professor of International Business Law at the University of Leeds in the UK, a Visiting Professor at the University of Vaasa in Finland and INSOL International Scholar for 2020/2021. He has also led and worked on a number of international and comparative research projects. He has researched and published extensively on insolvency and secured credit law and particularly the international and comparative dimensions of the subject.
Abstract:
The consensus view in the EU seems to be that to allow recovery procedures by creditors to operate without restraint could frustrate the overall socially desirable goal of business rescue. Since going concern value may be a lot more that breakup value, restructuring proceedings are designed to keep a business alive so that this additional value can be captured. These goals will be compromised however, if creditors are able to seize assets that are essential to the carrying on of the debtor’s business Consequently, we have a stay on actions by creditor to collect debts or repossess property that is in the ailing debtor’s possession. The restructuring strategy seems to be founded upon a premise that the interests of a few may need to suffer in the service of the needs of the many and this premise is transformed into a legal mechanism through the stay.
Property rights are sacrificed to a degree but, at the same time, protected to a degree. In the United States, there is an unambiguous statutory statement that secured creditors are entitled to receive ‘adequate protection’ of their proprietary rights. US law has a tight, clearly defined requirement of “adequate protection”. But relief from the stay is available where the property is not needed for a successful reorganisation
In the European Restructuring Directive, there is nothing specific about compensating secured creditors for a decline in the value of the secured property during the stay period and while, no doubt, this would be factored into the equation in an appropriate case it is not a decisive factor. Clearly, one’s views on the purposes the law will shape one’s views of the statutory stay and whether the holders of proprietary rights should be compensated for the delay occasioned by the stay in enforcing their property rights. A strict supporter of the principle that pre-insolvency entitlement should be upheld absolutely would answer that holders of proprietary rights should undoubtedly be compensated in full. Supporters of more inclusive theories would respond that the question must depend on a complex of different factors including the length of the stay, the immediacy of the prospect for business rehabilitation, the necessity for use of the property and the impact on other creditors. This, broadly speaking, is the EU position given the protection afforded employee rights but, at the same time, there is also protection for financial markets transactions including close out netting agreements.
Academic Forum Online Conference 2020
30 September 2020
This year the Academic Forum's Annual Conference was held on-line with two highly relevant papers by Professors Horst Eidenmüller and Kristin Van Zwieten, both of University of Oxford, and by Lydia Tsioli of King's College London. Read the conference report by Paul Omar and Myriam Mailly here.
Watch a video of the conference here:
An outline of the Academic Forum Online Conference 2020 is available here as well as the final technical programme here.
Download here the presentation slides of Session 1: Stabilizing Corporate Workouts (Out-Of-Court Restructurings) in Times of the COVID 19-Pandemic and Beyond: The Case for Creditor Cooperation Duties
Download here the presentation slides of Session 2: Viability Assessment: Models and filtering mechanisms from U.S. Chapter 11 to the European Directive
Download a report of the Q&A session here.
1 December 2021