February 2025

Dear Members

As this second month of the year nears its end (and part of the Netherlands is enjoying the skiing holidays), I am hoping for spring to arrive soon. 
 
Looking forward, next month I will be joining an INSOL International panel on the 5th of March titled 'The Future of Restructuring and Insolvency Fee Structures: Balancing Cost, Value and Transparency’. You can register for that here. 

Later in March I will be hosting our half year Council meeting, which is being held at my offices in Utrecht. I hope to have a good turnout and good discussion on our current and future plans. I also want to draw your attention on the next events during 2025… take a look at the ‘save the dates’ below. 
 
As I was given the opportunity to participate in the Pravo Justice webinar last month - the day after Ukraine implemented the Directive on preventive restructuring - I had the opportunity to investigate the progress that has been made over the years in the transposition of this Directive. It is fascinating to see that every country has its own timing and its own way of transposition (take a look at the list on our website). The Netherlands implemented the new preventive restructuring regime (WHOA) on January 1, 2021, and as practitioners we are now using this new regime to our advantage, or rather to the advantage of the clients in distress. Other countries have transposed the directive in the meantime, even though the EU Commission has seen fit to start infringement decisions (against Ireland and Austria) due to the absence of communication by member states of measures taken to transpose the EU directive into national law, timely before the 17th of July 2024. 
 
The European Commission is also assessing the compliance of the national transpositions with the Directive. One of the findings is that even though most of the features of the Directive already are part of the law in many jurisdictions, the transposition has fine-tuned or expanded existing frameworks next to introducing new concepts, like the cross class cramdown or new frameworks altogether, like the WHOA. The conformity with the Directive varies across jurisdictions, depending on whether restructuring features were already in place, required modifications or were newly introduced. Newly implemented or substantially revised features tend to align more closely with the Directive. I find that hardly surprising. When it comes to the practical use of the (new) frameworks, this has also been assessed by the EU, and unsurprisingly the findings underscore that while legislative alignment is widespread, the practical application of the measures is influenced by factors like the timing of the implementation and or the general level of familiarity with the new framework. 
 
I can highly recommend the article in this newsletter by Noor Zetteler and Anne Mennens, on one important aspect of the WHOA, that has been decided by our supreme court, i.a. on the question whether it is possible in a WHOA plan to impose new financing obligations on lenders (spoiler alert: no that is not possible).  
 
In one of the next newsletters I’ll take a look at that other piece of legislation that is currently in the works, the harmonisation of several aspects of insolvency law.

Alice van der Schee
President, INSOL Europe

This issue is kindly
sponsored by:
 

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firm with lawyers located
in more than 40 countries
throughout the world.
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