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February 2022

Dear Members

Welcome to the February edition of our INSOL Europe Electronic Newsletter.

I had planned to share my delight with you that our upcoming Annual Congress in Dublin is almost fully booked out and how much I am looking forward to meeting you again, before getting into a quick summary of what you will find in this month's Newsletter with updates on the happenings in the world of restructuring and insolvency across Europe.

But then, as I write this, the world lurches from a pandemic related challenge to one of a completely different magnitude. On 24 February 2022, Russia’s president Vladimir Putin declared war on Ukraine shortly before 6am Moscow time. A war that many considered unthinkable has begun; it will reshape our world.

NATO member states have agreed to bolster land, sea and air forces on the military alliance’s eastern flank. The US, UK and the EU have moved swiftly to impose a first tranche of economic sanctions on Russia and have all rolled out measures that include restrictions on the sale of Russian debt, the freezing of assets of Russian oligarchs and their children, banks and parliamentarians and more. My native Germany took the decision to suspend the permitting of Nord Stream 2 (NS2), an undersea pipeline intended to carry more gas from Russia to Germany. The EU is about to ban Russia’s access to its financial marketplaces.

Maybe I should lend my own voice to the cacophony of outraged politicians and commentators who, until earlier this month, conveniently forgot the fact that this conflict first erupted in early 2014, and while the armed conflict in eastern Ukraine may have initially transitioned to a stalemate, shelling and skirmishes regularly continued, including an escalation of violence in the spring of 2021.

Maybe I should, but for all my failings, I still find hypocrisy difficult to stomach. There are no words, nothing for me to say or do other than offer my prayers for the people of Ukraine, little good it may do them. And maybe this, as a reference to a proud people:

Out of the night that covers me,
Black as the pit from pole to pole,
I thank whatever gods may be
For my unconquerable soul.

In the fell clutch of circumstance
I have not winced nor cried aloud.
Under the bludgeonings of chance
My head is bloody, but unbowed.

Beyond this place of wrath and tears
Looms but the horror of the shade,
And yet the menace of the years
Finds and shall find me unafraid.

It matters not how strait the gate,
How charged with punishments the scroll,
I am the master of my fate:
I am the captain of my soul.
[William Ernest Henley (1849–1903]

Wherever you are reading this, please stay safe and well.

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 Congres, Dublin - Now just 1 week to go!

Registration Closing Date:
Monday 28 February at 13:00 CET

Download the Congress brochure here

Our Annual Congress in Dublin is taking place next week, and with over 350 delegates registered already for the main Congress alone, we will be closing registration for both the main Congress and the Academic Forum conference that precedes it on Monday 28 February at 13:00 CET in order that we can finalise numbers. So if you haven't already registered your place, make sure you book now and don't miss out!

Richard Turton Award 2021 Winner - Abbas Abbasov
The Richard Turton Award Panel is pleased to announce that the 2021 winner is Abbas Abbasov from Azerbaijan. Abbas is currently a PhD student at the Martin-Luther-Universität Halle-Wittenberg in Germany, researching cross-border insolvency and restructuring law. He will be writing a paper on “Protection of dissenting creditors’ interests: Direct application of the “substantive fairness’’ test while considering the recognition of foreign restructuring plans”, which will be published in summary in Eurofenix and in full on our website. As part of the award, Mr Abbasov is invited to attend our Congress in Dublin in March 2022 where he will be presented with his certificate at the Gala Dinner.

With thanks to our Congress Main Sponsor:

New Judicial Wing Publication launched

We are very pleased to announce the launch of the sixth volume in a series of publications by INSOL Europe’s Judicial Wing titled 'COVID-19: Which practical measures adapted by the insolvency courts because of the pandemic are desirable to become permanent changes of their practice?'

The articles in this volume describe how and to which extent the use of technology could help judges in different European countries to cope with the adverse impact of COVID-19 on their procedural work.

The information, authored by members of the Judicial Wing, shows a broad range of different approaches to deal with the conditions under the pandemic: from no specific legislation and measures at all to legislation permitting remote hearings quite liberally and an extensive use of audio-visual technology by some courts.

Download the publication in PDF format here

Insolvency Proceedings remain low in France

In 2021, the number of insolvencies from January 2020 to December 2021 was 27,285. This figure marks a decrease in the number of insolvencies of 12.7% compared to last year (January 2019 to December 2020), reports Jean Baron, CBF Associés/INSOL Europe Country Coordinator for France.

Despite the Covid situation, we observe that the number of insolvencies for most categories of companies has declined, including hospitality sectors such as accommodation and food and beverage (-38.0% over one year) and industry (-13.8% over one year).

Even if Covid scheme supports have been withdrawn, some measures remain or have been renewed, this explains that insolvency proceedings figures remain lower in 2021 than those observed in 2019 and 2020.

But we notice that in Q4 -2021, insolvencies proceedings rebound of 9%. In fact, the construction industry is struggling due to supply difficulties in raw materials and soaring prices weakens companies cash flow.

However, since the beginning of the year, out-of-court proceedings (preventive, confidential, consensual and voluntary proceedings) such as mandat ad hoc and conciliation continue to grow (+29%), particularly due to the increase in conciliations (+38%).

Further statistics from France are published on our website here.

Member Blog: The supervisory board in a corporate's crisis

For years, the rules imposing the risk of personal liability of supervisory board members in a corporate’s crises have been increasing. This has now reached its current climax in the judgment recently handed down by the Berlin Court of Appeal (Kammergericht). It held that not only the operational management may be liable for all payments from the onset of the crisis but, in some circumstances, the supervisory board, too.

Particularly in times when government support is tapering off, the global supply chain is experiencing significant problems and zombie companies are increasing in numbers, supervisory bodies are called upon more than ever. A close supervision of the company's management is required, not only to support the company's crisis management but also to minimise the board members’ own exposure to risk.

As a general rule, the board of directors or the management of a company is under a firm statutory obligation to file for the commencement of insolvency proceedings without unreasonable delay as soon as an insolvency event has occurred. A maximum period of three weeks from failing the statutory cash-flow test or, alternatively, a period of six weeks if failing the balance-sheet test may be exhausted. During this time, however, no payments may be made by the management unless they are privileged. If the executive board or the management is in breach, they are exposed to personal liability for the damage incurred by creditors which may include all payments made by or on behalf of the company from this point on.

Frank Tschentscher (INSOL Europe President), Dr. Volker Schulenburg and Marcus C. Spangenberger of Deloitte in Germany have recently published a blog about the increased advisory and monitoring duties upon the occurrence of an insolvency event which can be read in full here.

INSIDE Story: Jurisprudential Trends in Russian Bankruptcy Law

The year just gone, 2021, was notable for a number of landmark cases in the sphere of bankruptcy. For almost ten years, bankruptcy has held the palm of supremacy within the Supreme Court’s Judicial Chamber on Economic Cases. In this roundup, these landmark cases from the 2021 judicial calendar have been presented in date order of the judgements.

Issues dealt with by the courts include significant clarification about the possibility of subordination of claims in the bankruptcy of individuals, the standard of proof in relation to claims by related/affiliated creditors, and the rules in respect to retention of title/ownership over goods in the event of the seller’s insolvency.

The report also includes a review of the Constitutional Court’s ruling on the case of immunity from execution in respect of a debtor’s sole residence in light of subsequent court practice as well as the tendency to protect defendants from groundless subsidiary liability through the Supreme Court suppressing attempts to pursue the vicarious liability of persons simply because they are found to be controlling.

Read the full story here by Alexander Popelyuk, partner at Lidings, Russia

Legal Duties for Directors of Companies in Slovakia to be extended

Since the Directive 2019/1023 on preventive restructuring frameworks is about to be implemented in Slovakia within the next few months, directors of companies should be aware that the legislative proposal currently being discussed in the parliament will introduce new duties for them.

In general, directors will be obliged to take certain steps already in the stage of a likelihood of insolvency. The debtors will have to be more careful about their financial situation. If their directors will not be able to see risks, they will have to hire an expert to do so. Moreover, in the case of likelihood of insolvency the directors will have to take the interests of creditors into account. It is good news for the creditors, but still, the final effect of this legislation will depend on the courts.

You can read the full blog provided by our Country Co-ordinator for Slovakia, David Orsula, on the bnt website here, written by his associate Martin Gazdik.

Decision Phase for the new EU Initiative: Format, Content and Progress

The final scheduled meeting of the EC Experts’ Group on Restructuring and Insolvency took place online on 28 January 2022. In the lead up to the last two meetings that preceded this event, taking place towards the end of 2021, two key documents were released giving an insight into a possible format for a draft text and some indication as to its contents and likely progress, reports Barry Cahir, Beauchamps, Ireland/INSOL Europe EU Study Group Chair.

The first was the Commission Work Programme 2022, adopted on 19 October 2021, which contained over 40 policy initiatives for 2022, focusing on green, digital and post-pandemic resilience issues. The second document was a new Communication on the second CMU Action Plan, first announced on 24 September 2020, on 25 November 2021. Neither document refers expressly to a precise form for the insolvency initiative, which has been the subject of some debate throughout the deliberations of the Experts’ Group.

At the 28 January 2022, a number of topics were on the agenda in the shape of sufficiently advanced recommendations and model frameworks for possible harmonisation. In the way the agenda was presented, it seems as if the discussion points anticipate a possible shortlist for the contents of a draft text or texts.

It will not be an easy ride. If the text progresses, it will owe much to the calibre of the contributions to the discussions, drafting and deliberations. Many of these came from INSOL Europe members with undoubted expertise and experience derived from practice and academia. Nonetheless, this initiative to harmonise insolvency law is ambitious and much goodwill and good faith may prove necessary to see it through to a successful conclusion.

For a full report by INSOL Europe Research Co-ordinator Paul Omar and Technical Officer Myriam Mailly, please visit our website.

Joint Fraud Conference 2022, London: Now only 6 weeks to go!

Now only 5 weeks to go - Register Here

Members of INSOL Europe can register at the reduced fee of only £345+VAT.

INSOL Europe, R3 and Fraud Advisory Panel are really pleased to shout about our Hybrid Fraud Conference on 30 March. The one-day conference is taking place at the Royal College of Physicians, Regents Park. All attendees have ticket options to suit your needs that allow you to participate virtually or face-to-face for a fantastic in-person experience.

Delegates will have a chance to reconnect and learn from anti-fraud, asset recovery and insolvency practitioners from across the public, private and voluntary sectors. You can find a full list of speakers and programme on the conference website.

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.