Alastair Beveridge
President of
INSOL Europe

This Model Law, like the Model Law on recognition and enforcement of insolvency-related judgments adopted in the last session, is also designed to complement the existing 1997 UNCITRAL Model Law on Cross-Border Insolvency (MLCBI) and the UNCITRAL Legislative Guide on Insolvency Law, in particular its part three. Legislation based on the MLCBI has been adopted by many jurisdictions, including certain of the EU Member States: United Kingdom, Poland, Slovenia and Greece. 

Further, the Working Group continued to discuss a draft text on a simplified insolvency regime for micro, small and medium-sized companies and suggested revisions to the text as well as inter-sessional informal consultations in order to progress with this project.

Finally, the Working Group discussed two proposals for possible future work. The proposal of the European Union on harmonizing applicable law in insolvency proceedings received large support recommending the Commission to take this up and allocate the project to Working Group V. As regards the proposal of the United States of America on asset tracing and recovery the Working Group recommended to hold a colloquium on whether the work should be taken up and with which scope.

INSOL Europe was honoured to have been invited to send a delegation to the 55th session which was held in May 2019 in New York. Our delegate, Florian Bruder of DLA Piper, will provide a more detailed update on the session, including a summary of some of the key points discussed among the States regarding the new Model Law on Enterprise Group Insolvency and the respective Guide to Enactment in the next issue of Eurofenix. 

Further information on UNCITRAL Working Group V

Thursday 27 and Friday 28 coincided with a Europe-wide heatwave, sending temperatures soaring into the high 30s and low 40s. In Belgium, the airconditioned confines of the Stanhope Hotel helped keep the 80 speakers and delegates cool, though the items on the agenda were just as hot as the external temperature, the two key items on the programme being the recently adopted Preventive Restructuring Directive (2019/1023) (PRD) and the almost eternal question of Brexit.

Leading off the debate on the PRD, outgoing EU Commissioner Vera Jourova thought the text a singular achievement with a coordinated European approach being all the more necessary in the face of US and Chinese aggressive behaviour on the markets. Though full harmonisation is unlikely to be achievable, the Commissioner thought that Member States still needed to review the stigmatising focus of traditional European approaches. Joining in on the future of European initiatives in insolvency, Salla Saastamoinen (DG Justice) brought attention to the influence of the EU on the work of UNCITRAL in the field of conflict of laws, perhaps even leading to a recommendation to Member States to adopt the Model Law.

The focus of the morning panel was on how Member States should approach the process of adopting the PRD, Commissioner Jourova having warned against gold-plating the text to avoid complicating the simplicity of the text and its purpose. Salla Saastamoinen suggested that the main result of the PRD being adopted was to offer Member States a further tool for the toolkit, one that should prove useful. Members of the panel also contributed views on how French law will adapt to the PRD and how Denmark will fare as an outsider to these initiatives.

For a longer report visit our website.

The theme was “Cross-border restructuring: at a crossroads in the wake of Brexit?”. Case law developments allowed something of a look back, while case studies on Agrokor and Steinhoff provided the reality of the here and now. The view forward covered Directive (EU) 2019/1023 on preventive restructuring frameworks, which came into force on 16 July 2019 and requires member states to implement its provisions within two years. Also forward looking was a comparison of English and Dutch schemes of arrangement, the latter being the subject of a bill just presented to the Dutch parliament and which is expected to pass into law during 2020. Finally, four judges explained the development and planned growth of International Commercial Courts in Ireland, the Netherlands, France and Germany.

It was clear from delegates’ passionate engagement during the breaks and when networking after the conference that the direction of travel through the crossroads was similar for all jurisdictions. Furthermore, Brexit is an unwelcome diversion that will hamper cross-border restructuring involving the UK. Even though professionals will be busier on UK cross-border restructurings, non-UK mechanisms will become increasingly important tools, challenging the dominance of UK professionals in this arena.

A full report by Chris Laughton will appear in the next edtion of Eurofenix.

Issues arising from coordination among possible cross-border procedures seem underestimated in the Preventive Restructuring Directive (“PRD”). The PRD purports to be almost indifferent with respect to the Recast European Insolvency Regulation (“Recast EIR”). It cites the Recast EIR in various recitals and articles, but expressly takes into account the possibility that the restructuring framework which a Member State designs or chooses to implement the PRD will not be a procedure listed in Annex A of the Recast EIR, thereby leaving the Member States a freedom that, if fully used, may raise thorny issues.

Leaving aside the issue of debtor discharge, with reference to restructuring frameworks, Recital 12 refers to the PRD as a step towards the establishment of “substantive minimum standards for preventive restructuring procedures”, vis-à-vis the procedural coordination sought by the Recast EIR. Lorenzo Stanghellini, Professor, University of Florence and Andrea Zorzi, Researcher, University of Florence, dig into the issues of the problematic freedom for Member States. Read the full story and other articles here.

If you would like the opportunity to have your Inside Story published in a future edition, please email Communications Manager, Paul Newson for details.

INSOL Europe
Annual Congress 
Copenhagen, Denmark 
26-29 September 2019

Register today!

Less than 40 guest rooms left
at the Congress venue.

Download the Congress Brochure
or Register Online Today.

Registration for this event is only available online.

The Technical Committee for the INSOL Europe 2020 Congress, which will be held in Sorrento from 1 to 4 October 2020, invites all INSOL Europe members to express their interest to participate as speakers at our flagship event.
 
All expressions of interest should be sent to the Secretary to the INSOL Europe Conference Technical Committees, Emmanuelle Inacio, and should indicate: 

1. the speaker’s nationality, affiliation and qualifications,
2. the topic on which the speaker would be interested in speaking, and 
3. a short statement as to what unique or compelling perspective the speaker would like to bring to the congress. 

The Technical Committee seeks in particular proposals from speakers who have not been speakers at the last two Annual Congresses. 
 
Expressions of interest should be sent as early as possible, no later than 15 September 2019. All expressions of interest will be considered by the Technical Committee, although due to the large number the Committee expects to receive, the Committee likely will not be able to accommodate all, or even most, requests.

The Co-chairs of INSOL Europe’s 2020 Sorrento Congress, Giorgio Corno (Italy) 
& Simeon Gilchrist (United Kingdom)

Join IWIRC London Network and INSOL Europe over breakfast in London.

9 September 2019, 8.30am - 10.00am
RSM London Office, 25 Farringdon St, Farringdon, London EC4A 4AB

We are hosting a joint panel discussion on recent cases in the UK and Europe touching on cross-border restructuring issues and the challenges of jurisdiction choice. This free event is restricted to IWIRC or INSOL Europe members and tickets will be allocated on a first come, first serve basis. Further detail on speakers will be announced soon.

Register your place on IWIRC's website.