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INSOL Europe news and offers
December 2021

Dear Members

As we quickly head towards the end of another year that no one saw coming, we pause again to reflect and take stock. For me, it has become a time to check-in with myself. To practice gratitude and take stock of the good – in our lives, in each other, in the world. 

As for the good in my life, I am delighted to report that I just burned 2,000 calories. That is the last time I leave brownies in the oven while I nap. As for each other, and on a more serious note, our recent online events provided great opportunities yet again to catch up on European initiatives and recently introduced legislation and to connect with practitioners, young and young at heart across Europe and beyond. For those of you who missed these events, you are in luck as there is more to come and I refer you to our column of upcoming activities.

Lastly, this month’s newsletter offers a collection of technical articles on cross-border insolvency matters, namely the Hungarian Government’s introduction of a new type of insolvency procedure, designed to be the main alternative to the existing traditional insolvency procedure and, further, a comprehensive summary of the 7th and 8th meetings of the EU Experts’ Group on Restructuring and Insolvency which took place on 16 November and 10 December 2021 respectively. We also report on the UK’s ill-fated attempt to join the Lugano Convention and, further, our own organisation’s joint project with LexisPSL on 'How EU Member States recognise insolvency and restructuring proceedings of a third country'. Summaries of the results collected from all EU Member States with links through to the more in-depth articles are available on our website. 

I wholeheartedly recommend that you take some time - maybe over a cup of coffee (or tea) - to read the collection of pieces in this month's edition. I do not think you will regret it. 

In closing, I hope wherever you are reading this, you are staying safe and well.

Season's greetings!

Frank Tschentscher
President INSOL Europe

 

 

Frank
Tschentscher

President of
INSOL Europe

 

This issue is kindly sponsored by:
 

LETT

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

 
INSOL Europe/LexisPSL Joint Project on 'How EU Member States recognise insolvency and restructuring proceedings of a third country'
Following the aftermath of Brexit, Kathy Stones (Restructuring and Insolvency lawyer, LexisNexis, UK) began thinking about how the world looked for English insolvency practitioners (IPs) without the comfort of our well-loved Recast Regulation on Insolvency 848/2015 (the EIR Recast).

Gone were the days when IPs could confidently expect any insolvency proceedings listed in Annex A and started in England to be recognised across all EU Member States automatically, without question. Instead, we were faced by a confusing patchwork of different local regimes, now that England was effectively treated as a third country. England was effectively in a similar position to the US, Australia, Japan or Canada, when seeking to have its insolvency proceedings recognised in EU Member States.

This was the driver for the Joint Project between LexisPSL and INSOL Europe to map out local processes in each Member State. 

The starting point for the project was to ask whether each Member State had adopted (or was considering adopting) the UNCITRAL Model Law on cross border insolvency. Although not as comprehensive as the EIR Recast, it does provide some assistance for recognition following an application to the local court. However, its use is significantly hampered as, besides the UK, only a handful of Member States have enacted it (Greece, Poland, Romania, Slovenia) and none of the others questioned thought future adoption was likely.

As the results came back, some key themes started to emerge. On the specific question of whether an English scheme of arrangement or restructuring plan would be recognised, most countries had not yet tested this in caselaw, so pointed back to their general principles on recognition. The INSOL Europe Country Coordinators and other authors thought that roughly 40% of the Member States would probably grant recognition, though many said the position was unclear, with some drawing a distinction, following gategroup Guarantee Limited [2021] EWHC 304 (Ch), between the restructuring plan (which may be more readily classed by Member States under their PIL as an insolvency procedure) and the scheme of arrangement. Obviously, each case depends on its own facts and local advice should always be sought before commencing proceedings.

We have produced a table summarising the results from all EU Member States with links through to the more in-depth articles from the INSOL Europe Country Coordinators and other authors, which is available via LexisPSL and the INSOL Europe website here.

Kathy Stones (LexisNexis, UK) will be joining Chris Laughton (Mercer & Hole, UK), who is chairing a panel of speakers from the UK, the Netherlands, Germany and Ireland at the INSOL Europe 2022 Dublin Congress, to discuss ‘Cross-border schemes and plans: how they work in different jurisdictions’ and also some of the joint project’s findings on recognition.

The UK's possible re-joining of the Lugano Convention
Chris Laughton, Corporate Restructuring Partner at Mercer & Hole, UK.
 
While the UK government and the EU Parliament continue to express lukewarm interest in the UK joining the Lugano Convention, there is currently no convention or other arrangement governing the recognition and enforcement of judgments between the UK and the EU. Neither the Brussels I Regulation nor the Lugano Convention apply in the UK since Brexit.
 
Lord Wolfson, a junior minister in the UK’s Ministry of Justice, said in October “I would prefer to be in [the Lugano Convention] but it’s not a disaster if we’re not.” Adrián Vázquez Lázara, chair of the European Parliament’s Legal Affairs (JURI) Committee, had said after the EU declined to support the UK’s accession to Lugano that if compromises are to be reached “it is mainly a matter of political will and good predisposition” but there could be an “ad hoc agreement in the future that allows the UK to be part of the Lugano Convention by means of accepting certain conditions.”
 
UK-EU governmental relations are not at their best – there is perhaps something to learn from the cross-border insolvency community about the benefits of communication and cooperation – and an ad hoc agreement subject to conditions seems as unlikely currently as another of Vázquez Lázara’s suggestions, for the UK to join the EFTA Agreement (with all its consequences). However, a route forward, albeit a very slow one, might be for both the UK and the EU to accede to the Hague Judgments Convention 2019, although even then they would have to agree to it applying between them. Because the route to Hague accession and agreement is slow, UK-EU relations may have had time to improve.
 
The European Parliamentary Research Service (the European Parliament's in-house research service and think tank) has published a briefing paper on the UK's possible re-joining of the Lugano Convention on 18 November 2021, which can be read here.
Eurofenix Winter Edition Preview

In the Aachen treaty dated 22 January 2019, France and Germany agreed to deepen the integration of their economies and to harmonize their business laws, including their respective insolvency proceedings. The transposition of the EU Directive on Restructuring and Insolvency was a first opportunity to implement this programme, writes Reinhard Dammann, Dammann Avocat / Sciences Po, France.

What is the comparative result? At first sight, both countries took quite different approaches. France transposed the directive, de minimis, by way of an Ordonnance dated 15 September 2021, amending existing accelerated safeguard proceedings and introducing classes of creditors into safeguard and redressement judiciaire proceedings. By contrast, the German StaRUG created, as of 1 January 2021, a brand new standalone and very detailed restructuring procedure, containing no less than 102 paragraphs, in accordance with very thorough German-style legislation. But in reality, there is a great deal of convergence of both systems.

French law was known for an efficient and successful two-stage model. A restructuring agreement was negotiated in the framework of a transparent pre-insolvency conciliation procedure. To overcome the holdout position of dissenting minority creditors, financial accelerated safeguard, functioning as a prepack, was available. However, the French system was also known for its debtor-friendly approach, lacking classes of creditors, cross-class cram-down and efficient creditor protection through the best interest of creditors’ test. On the other hand, Germany was starting from a blank sheet. There was no pre-insolvency restructuring procedure, but only efficient debt restructuring in the framework of the Planverfahren within regular insolvency proceedings (InsO).

With StaRUG, the German legislator has created brand-new mediation and preventive restructuring proceedings (Sanierungsmoderation, StaRUG-restructuring procedure). The French approach sticks to its successful two-stage system, but introduces classes of affected parties, replacing the old creditors’ committees. 

Reinhard Dammann's full comparison between the countries' approaches can be found in the Winter edition of Eurofenix, to be published in January 2022.

  
 
Academic Forum Conference, Dublin 2022: Call for Papers Update

The INSOL Europe Academic Forum is excited to announce that the call for papers for its March 2022 conference in Dublin attracted 27 paper proposals from 15 jurisdictions. As expected, the papers mostly focus on preventive restructurings, both at the national level and in the cross-border and general policy context, but submissions also cover a number of other interesting topics in our field of research.

The Board of the Academic Forum has started the process of selecting those authors who will be invited to present their papers on 2 and 3 March in Dublin. The outcomes of the selection will be announced shortly after the Christmas break. More details will be posted on our website.

 

The Academic Forum is sponsored by Edwin Coe LLP

 

 

INSIDE Story: The new 'Reorganisation' Model in Hungary

Since the COVID-19 pandemic, to mitigate its effect on the economy, the Hungarian Government has taken several measures, passed several pieces of emergency legislation and introduced new legal tools to help – among others – local businesses. As part of the emergency legislation, the Hungarian Government introduced a new type of insolvency procedure, designed to be the main alternative to the existing traditional bankruptcy procedure (in Hungarian: “csődeljárás”).

This new procedure serves as a new potential tool for businesses to handle and survive an insolvency situation, to restore their solvency and to continue the business operations.

Read the full story here by Zoltan Fabok, Special Counsel, DLA Piper, Hungary and Mark Seres, Associate, DLA Piper, Hungary.

 
Full Steam Ahead for New EU Initiative

In 2021, INSOL Europe has continued making submissions to the European Union staff  by its participation to the European Commission Group of Experts on Restructuring and Insolvency law as an observer. The INSOL Europe EU Study Group is chaired by Barry Cahir (Beauchamps, Ireland).

The 7th and 8th meetings of the EC Experts’ Group on Restructuring and Insolvency took place on 16 November and 10 December 2021 respectively, the first in hybrid form, the second online, owing to changing circumstances in BelgiumINSOL Europe members were well represented at the meetings, which featured the results of the deliberations of various clusters of experts working on the themes set out as part of the ambitious strategy for harmonising substantive rules in insolvency law.

Of note preceding the substantive discussions at the first meeting was the recently finalised Commission Work Programme 2022, adopted on 19 October 2021. The programme contains over 40 policy initiatives for 2022, focusing on green, digital and post-pandemic resilience issues. It also mentions the need for fully developed European capital markets to aid recovery from the pandemic, which will require massive investment beyond that delivered by public money and traditional bank lending. In this light, action in respect of insolvency is seen as aiming to enhance convergence, remove discrepancies, increase efficiency and facilitate cross-border investment. As part, therefore, of the overall programme, the deepening of the Capital Markets Union (CMU) will feature the harmonisation initiative, albeit the calendar for completing the first phase of work has slipped from 2022 Q2 to Q3. This appears to be to avoid a legislative logjam, the opportunity thus being afforded to further finetune the proposals.

A new Communication on the second CMU Action Plan, first announced on 24 September 2020, also emerged on 25 November 2021. The action plan, which builds on the ambition to integrate national markets into a real and effective single market to facilitate cross-border investment, sets out the insolvency initiative as one of its key features in its Action 11 with view to making the outcome of cross-border investment more predictable. The precise form of the insolvency initiative has been the subject of some debate throughout the deliberations of the Experts’ Group. Various vehicles, ranging from a Recommendation form to a formal Directive text, have already been suggested, with options being canvassed for the separation of topics into different texts, if more than one is proposed. In providing an update on progress on the action plan, although it refers to various legislative texts to be formulated for delivery soon, the Communication does not appear to settle the matter with respect to insolvency, as it only refers to the proposed initiative and no further.

Nonetheless, advantage of the slippage in the programme has already been taken to schedule a further meeting of the group on 28 January 2022, where it is expected that, in light of the Commission Work Programme 2022 and CMU Communication, the shape of a text and a possible shortlist for its contents will be known. The meeting will also deal with any matters outstanding from the agendas of the November and December meetings.

 

A round-up of our recent online events

It has certainly been a busy few weeks with several online events taking place in November and December, making sure we keep in contact with our members in these challenging times.

Our EECC Conference took place on 25 November with the theme ‘A Wake-up Call for Sleepy Companies’, which focused on the zombie company phenomenon and case studies from the airline industry. INSOL Europe’s newly appointed President, Frank Tschentscher (Deloitte, Germany) together with Evert Verwey (Clifford Chance, Netherlands) gave the welcome address, while Catherine Bridge Zoller (Legal Transition Team, EBRD) gave the keynote address, detailing the final EBRD Assessment Results. A unique project, supported by INSOL Europe, the report soon to emerge will dive deep into the restructuring regimes of more than 40 jurisdictions uncovering examples of best practice as well as insolvency principles that require strengthening. The event was sponsored by BDO Restructuring. Read a full report of the conference on our website here.

The following week, the INSOL Europe Academic Forum 2021 Winter Lecture on the subject of ‘StaRUG: The New German Restructuring Law’ took place online on 1 December 2021. Sponsored by Edwin Coe LLP and facilitated by Tomáš Richter (JŠK, Prague; Chair, INSOL Europe Academic Forum), the lecture was given by Professor Christoph Thole (University of Cologne). The new legislation, which entered into force on 1 January 2021, introduced pre-insolvency proceedings based on the likelihood of insolvency with a restructuring plan outcome allowing for cram-down together with a further procedure similar to the French conciliation. The pre-insolvency process is a completely new tool insofar as cram-down is now available, as compared to the previous practice of amicable agreements. A full report and Prof. Thole’s slides can be read on our website here.

Finally in our short round-up, our Young Members Group hosted another online event on Thursday, 9 December and this time they had a beer and chocolate expert with them for a virtual Beer & Chocolate tasting session. Werner Callebaut gave the attendees some surprising insights when he explained how well, for example, cherry chocolate and dark beer would go together. The mood was not dark at all though – the event was a wonderful and lively Christmas party for our Young Members. It was a great occasion to close the year for INSOL Europe by looking back on 2021 and give a preview on 2022. The evening was sponsored by Schiebe und Collegen. Further details of the evening including a recording of the tasting session and guidance notes can be found on our website here.

Keep an eye on our forthcoming events for more online networking opportunities and the chance to meet again in person in March, with two live events – our Annual Congress in Dublin (3-6 March), and the Anti-Fraud conference in London (30 March). Visit our website’s Events page for more details.

Annual Congress 2022 - Less than 3 months to go!

Now less than 3 months until our
Annual Congress in Dublin - Register today!

Download the Congress brochure here

Our Annual Congress 2022 in Dublin promises to bring the INSOL Europe family back together again with an exceptional technical programme and fabulous networking opportunities from beginning to end. We have certainly been apart too long and with that in mind, our social programme will not disappoint, with much in store for our delegates and guests to enjoy during their stay. Visit our website or download the Congress brochure for more details.

With thanks to our Main Sponsor:

 

More Dates for your Diary in 2022

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!

If you would like to enquire about the sponsorship opportunities for this event, please contact Hannah Denney for more information about the packages available.


Joint Online Speed Networking with AIJA, 13 January 2022

Following our successful Young Members Group online networking events, this time we are joining forces with the International Association of Young Lawyers (AIJA) on 13 January 2022 for an opportunity to network with fellow young members from both associations. The event will be free to attend and more details will be posted on our website soon.

Full details of both these events will be launched on our website soon, but in the meantime please email Harriet Taylor for further details.


 

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.

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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.