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January 2022

Dear Members

Welcome to the January edition of our INSOL Europe Electronic Newsletter. I trust that you have had an enjoyable holiday season. I took time to be with my family and to reflect upon the year that was, the challenges it brought but also the good things that made it better, like your continued support and loyalty, which remained strong even during the darkest days.

Most of us have stopped asking “When will it be over?” and started wondering how we can live with COVID – and what more it might have in store for us. In the context of restructuring, the gradual withdrawal of support measures for companies is going to set the stage for a gradual normalisation of business insolvencies in 2022.

The old proverb (attributed to Keynes, although this is disputed) suggests that “the markets can remain irrational for a lot longer than you or I can remain solvent” but as we near the two-year mark of the pandemic, it seems that irrespective of the present turmoil and uncertainties, very few companies had need of any restructuring or insolvency process. Instead, the global economy rebounded very quickly from the depths of mid-2020 and the IMF now projects global GDP to grow 4,9% this year, just a little lower than its previous projection but impressive nonetheless. However, many companies are now just beginning to count their real losses. Those of us old enough to remember the global crisis of 2009 or that at the end of the nineteen-nineties will know that insolvency and restructuring always lag behind economic recovery and if the pattern holds, then 2022 will be a lot busier for many of us.

I also believe that it is more important than ever that we communicate, network and share our experiences across borders. It is very timely, therefore, that on 22 January 2022 the Irish government lifted most of the COVID restrictions. The previously introduced 8pm curfew on the hospitality sector has gone, with pubs and restaurants able to trade restriction-free and without the need for social distancing or vaccine passports. Travelling to Ireland from overseas merely requires filling out a Passenger Locator Form before departure (check here: https://travel.eplf.gov.ie/) but passengers to Ireland do not have to show an additional pre-departure COVID-19 test result provided they have an accepted proof of vaccination or proof of recovery from COVID-19 in the prior 6 months.

A return to some normality is just around the corner. In only five weeks’ time, we can reconnect with peers, friends, and clients again at our Annual Congress in Dublin. To secure your delegate place, please register now. It is time to be ourselves again; solidarity with each other and trust in science has gotten us to where we are today and will get us through whatever else COVID may throw at us.

Turning to this month's edition, we have, as always, articles and technical insight from many parts of the world. I invite you to read the article on the successful restructuring of the insolvent retail chain FMCG in Poland and download the report on how EU Member States recognise insolvency and restructuring proceedings of a third country, a joint project between LexisPSL and INSOL Europe. I also recommend that you take some time to read Jennifer L.L. Gant’s report on 59th Meeting of the UNCITRAL Working Group V and the working group’s legislative recommendations on the insolvency of micro- and small enterprises. Please note the announcement of our new book project for 2022 and for the upcoming Fraud Conference (do not let the early bird ticket offer pass you by!). Last but by no means least, our Eurofenix winter edition offers a collection of articles worthy of your time, with further insights into legislative reforms, technical updates and COVID protection measures.

As always, I hope wherever you are reading this, you are staying safe and well and am looking forward to meeting with you soon.

Frank Tschentscher
President INSOL Europe

Frank
Tschentscher
President of
INSOL Europe

This issue is kindly sponsored by:

DLA Piper is a global law
firm with lawyers located
in more than 40 countries throughout the world.
www.dlapiper.com

Annual Congress, Dublin, 3-6 March 2022

Now less than 5 weeks to go until our
Annual Congress in Dublin - Register today!

Download the Congress brochure here

A return to some normality is now just around the corner and with only five weeks to go, we look forward to meeting up again in person at INSOL Europe’s “Back to the Future 2” Congress in Dublin, Ireland: 3 – 6 March 2022. Join over 240 delegates already registered!

We are pleased to announce that our Keynote Speaker will be Austin Hughes, Chief Economist at KBC Economics, Ireland. Austin has worked as an Economist for KBC Economics for more than 25 years, having previously worked in the Department of Finance, Central Bank and Bord Fáilte. His main focus is on issues affecting the Irish and European economies.

And don't forget to book your room at the Clayton Hotel, the Congress venue here.

With thanks to our Main Sponsor:

Academic Forum Conference, Dublin 2022

Now only 6 weeks to go!

Download the Programme and Registration Brochure here

The Academic Forum is sponsored by Edwin Coe LLP

Joint Project on Recognition - Final report now published

Apart from the European Insolvency Regulations applicable only between EU Member States, a few international instruments deal with the recognition issue relating to insolvency (and insolvency-related) judgments. Those international instruments, namely the UNCITRAL Model law (for those Member States which have enacted it), the Hague Convention or EU Rome I Regulation, may also be complemented by other specific private international rules. For third countries and the UK (as a consequence of Brexit), a great uncertainty remains therefore in terms of providing the necessary authority for the recognition of such judgments.

The Joint project between LexisPSL and INSOL Europe on the recognition of foreign decisions in the 27 EU countries has been designed to address those situations and provide the readers with a description of each national recognition process applicable to those judgments.

Download the final report here.

For more information visit our website here.

New Project: Yearbook 2022 - Insolvency law in times of crises

As one of the new initiatives for 2022, INSOL Europe has decided to launch a Yearbook project. The first Yearbook is scheduled to be published during INSOL Europe's Dubrovnik Annual Congress from 6-9 October 2022. The Yearbook will contain contributions from members and especially young members of INSOL Europe on the topic of "Insolvency law in times of crises". The Yearbook 2022 will be available for free only for delegates of the Dubrovnik Congress.

We herewith invite and encourage all members - and especially our young members - to contribute to the Yearbook 2022 by submitting a proposal for a paper. If you are interested in participating in this new project, please submit your proposal for a contribution (containing as short description of the topic you want to write about) by 11 February 2022.

Once all proposals have been received, the Editorial Board will make the final selection and will inform the authors. Contributions for the Yearbook 2022 then should be submitted ultimately by 2 May 2022. We feel that this is a great opportunity for young members in particular, so we strongly encourage them to participate in this project. A combined authorship is also encouraged.

We are looking forward to receiving your submissions which should be emailed to the following address: Jonathan.vanee@cms-dsb.com.

INSIDE Story: Mission (almost) Impossible in Poland

The successful restructuring of an insolvent FMCG retail chain in Poland is a rarity. For various reasons, brands such as Alma, Real, Billa, Hit, Géant, Leader Price, Bomi and MarcPol have not survived the competitive race and have ceased operations. Furthermore, after 25 years in Poland, Tesco sold its 300 stores in 2020 to Netto (Salling Group). The Polish retail market may be tempting (EUR 60 billion/2019, PMR), but it is also highly competitive with strong consolidation trends.

The successful turnaround of the Piotr i Paweł retail chain has shown two things: it is extremely difficult to continue doing business bearing the “under restructuring” banner and that an FMCG operation in distress cannot be carried out without serious support from an external financing entity, preferably a strategic investor. What is also needed is a huge amount of luck!

Read the full story here by Patryk Filipiak, Partner; Head of Restructuring and Bankruptcy, FilipiakBabicz, Poland.

Eurofenix Winter Edition: Regulations, Recognition and Relief in the UK

The Winter 2021/22 edition of Eurofenix has just been published and will be delivered to your post boxes in the next few days. This will be the last printed edition and we look forward to announcing the new digital platform from the Spring edition onwards.

The new edition features, amongst other articles, a discussion between Chris Laughton (Mercer & Hole, UK) and Daniel Lewis (Wilberforce Chambers, UK) on the new rules and procedures of the Cross-Border Insolvency Regulations (“CBIR”), a UK statutory instrument (SI 2006/1030), which became a more significant tool for insolvency practitioners on 31 December 2020, when the transition period ended after the UK had left the EU. Other EU insolvency office-holders now need to use the CBIR (or the Northern Ireland equivalent) to deal with assets in the UK. They are no longer able to use the provisions of the European Insolvency Regulation (“EIR”), unless main proceedings were already open when the transition period ended. Under the CBIR it is English law, not the law of the foreign representative’s jurisdiction or some supranational law, that will apply to the assets in England and Wales.

You can read the full article in the new edition of Eurofenix, available to download here.

If you would like to propose a feature article, country report or news item for the next edition, please do get in touch with the publishing manager, Paul Newson.

Euorofenix is kindly sponsored by

EBRD Business Reorganisation Report

Catherine Bridge Zoller, Senior Counsel, Legal Transition Team, European Bank for Reconstruction & Development (EBRD)

The interactive EBRD Business Reorganisation Report on insolvency and bankruptcy systems has now been released and is available for consultation at: https://www.ebrd-restructuring.com/. It includes a main report and individual economy profiles for all 38 economies where the EBRD invests including many INSOL Europe countries.

The Legal Transition Team of the EBRD is deeply grateful for INSOL Europe support and partnership over the last two years which really helped them to secure a very high level of response in European jurisdictions. All the data collected during the assessment are available for public consultation in anonymised format here.

A series of three virtual events presenting and discussing the new comprehensive and innovative EBRD Business Reorganisation Assessment on insolvency systems by the EBRD's Legal Transition Team will take place from Tuesday 1 to Thursday 3 February 2022. More information available here.

New Projects on the Horizon at UNCITRAL

In the week of 13 December 2021, UNCITRAL’s Working Group V on Insolvency Law met largely via UNCITRAL’s Interprefy platform, given the continued threat and restrictions of the COVID 19 pandemic (no schnitzel or strudel for the virtual attendees once again!), writes Jennifer L.L. Gant, INSOL Europe WGV Observer.

Quite quickly, the opening day of the session saw the ground-breaking and timely UNCITRAL Legislative Recommendations on Insolvency of Micro- and Small Enterprises finalised. This is a particularly important development in the current economic climate when MSMEs are facing financial difficulties worldwide.

On the second day, a potential practice or legislative guide on asset-tracing and recovery in insolvency proceedings was discussed. This project is particularly important, as an effective system of asset-tracing and recovery in insolvency would help to maximise the value of an insolvent estate while emphasising the protection of creditors. Although there are a number of challenges that will need to be overcome, such as how to deal with the era of digital trading, the project was viewed as, if nothing else, an educational and information sharing opportunity for which a toolbox could be developed that could aid jurisdictions that are currently without strong mechanisms in this area.

The third topic discussed in the week pertained to applicable law in insolvency proceedings. It was noted that this topic was obviously important, but also quite complex. A particular observation was that harmonising applicable law in insolvency proceedings and reinforcing the application of the lex fori concursus would enhance legal certainty and predictability, prevent abusive forum shopping, and reduce complexities and costs of insolvency proceedings. This idea is of course not unfamiliar to those well-versed in European cross-border insolvency discourse and it is perhaps not surprising that the European Insolvency Regulation (Recast) was brought up on a number of occasions as an exemplar of how this has been accomplished elsewhere, though the appropriateness of any significant borrowing was also met with some caution and even trepidation.

The 59th Meeting of the UNCITRAL Working Group V was productive, if disappointing due to its virtual nature. The next session should be interesting with many difficult cross-border matters to discuss. There are also a new set of recommendations for MSMEs to look forward to, which will be timely for small businesses struggling under the economic impact of the COVID19 pandemic.

Download the full report by Jennifer L.L. Gant here.

Joint Fraud Conference 2022, London: Limited Earlybird Tickets!

Following the first Fraud Conference hosted jointly by The Fraud Advisory Panel, INSOL Europe and R3 in February 2021, we are now organising a live event to take place in London on 30 March 2022. This conference will bring together world-class speakers including policy makers, insolvency experts, fraud specialists and renowned academics, who will deliver unique insights into hot topics related to global financial crime including tackling rogue companies, cryptocurrency fraud, digital forensics, how to make fraudsters pay and much more!

How to book: Visit www.thefraudconference.com for more information and register your place at www.thefraudconference.com/your-booking

Early bird ticket offer: Members of INSOL Europe can use the code: 15OFFINSOL which you will be able to apply at the last step of the booking, before making payment.

We welcome feedback, news and story ideas for future newsletters.

Please send your suggestions to Paul Newson, CEO & Communications Manager,
email: paulnewson@insol-europe.org.

INSOL Europe, PO Box 7149, Clifton, Nottingham. NG11 6WD

www.insol-europe.org

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Disclaimer: This newsletter is sent to members of INSOL Europe. No responsibility legal or otherwise is accepted by INSOL Europe for any errors, omissions or otherwise. The opinions expressed in the articles that appear are not necessarily shared by any representative of INSOL Europe.