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INSOL Europe news and offers
September 2022

 

Dear Members

Welcome to the September edition of the INSOL Europe Electronic Newsletter. 

Please allow me a few words before I get into a quick summary of what you will find in this month's Newsletter. The coming two weeks mark the final days of my presidency. It has been my honour and privilege to lead our wonderful organisation and as I hand over the baton to our next president Barry Cahir, I am delighted to report that we are in good shape. 

I am deeply grateful to all those of you who followed my persistent invitation to step forward and contribute, to rally and help turning what I have often described as a big, heavy flywheel. Together, we have built momentum from one turn to the next and seen real progress and breakthroughs over the past 12 months as achievements compounded. It has been truly energising for me to witness the almost universal enthusiasm and passion for our network and what we do. A thousand thanks to all!

For some time during my term as your president, the restructuring market remained relatively quiet. On several occasions, I shared with you my conviction that this would not last but turn quickly as a result of increasing inflation and rising energy prices throughout the world. 

At the beginning of 2022, the consensus forecast was for the largest economies to have returned to pre-COVID growth paths by the end of the year. Overall inflation was expected to be short-term, global fragmentation medium- to long-term but ultimately reversible. 

Six months later, the picture is significantly different. Disruptions caused by the ongoing war in Ukraine, surging energy prices and persistently high inflation have put the Eurozone economy under an unprecedented level of stress. The EU reported in August that consumer prices were up 9.1% from a year earlier, a record increase, and up 0.5% from the previous month, with energy playing the biggest role, up a staggering 38.3% from a year earlier and unchanged from the previous month. 

The stability of energy prices from July to August is welcome, but likely misleading. In the afternoon of Friday of last week, the price for a barrel of North Sea Brent fell to US$ 85.78. This was US$ 4.68 less than the previous day. Similarly, the price of a barrel of US West Texas Intermediate fell by US$ 5.07 to US$ 78.42. This is the first time the WTI price has been below US$ 80 since January 2022! However, irrespective of first impressions, this is not good news: the reason for the fall in oil prices is that they are burdened by a gloomy economic outlook. 

Analysts pointed to several central banks that raised their key interest rates significantly during the week in the fight against high inflation. As a result of the rising interest rates, there is concern among investors that the economy will continue to lose momentum and that demand for crude oil could fall. In line with those concerns, corporate sentiment in the euro area deteriorated further in September. The Purchasing Managers Index compiled by S&P Global fell to its lowest level in 20 months, signalling a recession for the eurozone economy. Data from the UK were similar.

In summary, the world is experiencing a level of disruption and business risk not seen in generations. Some companies will inevitably fail while others will innovate, advance and succeed in even the most difficult of circumstances. The difference is resilience - building resilience is the key to long-term sustainability and success and it why we have chosen ‘resilience in times of adversity’ as the overall theme for our upcoming Annual Congress in Dubrovnik, to be held from 6 October to 9 October 2022. 

The way we as insolvency and restructuring professionals approach these unprecedented challenges domestically and internationally will have a profound knock-on effect on the businesses and people who are exposed to gas shortage, surging energy prices and inflation. I invite you, therefore, to join us in Dubrovnik and explore how we can face today’s challenges with new ways of thinking, innovation and flexibility and keep viable businesses operating. 

Turning then to this month's edition, I am delighted to again present a great collection of highly topical articles and case notes with insights into legislative reforms, including Paul Newson’s report of the Finnish Insolvency Law Association’s tenth anniversary event in Helsinki, where he gave the opening speech, a teaser for Professor Parry’s forthcoming article in Eurofenix, reflecting on how insolvency laws can proactively be adapted to support the digital economy and address the risk inherent in the failure of digital services providers as well as  an important update on the Implementation of the EU Directive on Restructuring. This month’s Inside Story deals with the prominent bankruptcy of Oliver Kruuda, the entrepreneur behind the famous Estonian Chocolate brand “Kalev”. A very successful businessman until recently, Mr. Kruuda attempted to escape from obligations arising in Estonia by moving to Dublin, hoping to benefit from the more lenient provisions of the Irish bankruptcy law and an automatic discharge after one year. 

I would like to extend my gratitude to the authors who have devoted their time and efforts to contribute to this edition. And, as always, I hope wherever you are reading this, you are staying safe and well. 

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

 
Annual Congress 2022 - Dubrovnik - Now only a few days to go!

 

Our Annual Congress in Dubrovnik, Croatia
is now only a few days away!

Download the Congress brochure here

Registrations for our second Congress of the year are going well, with over 360 delegates already having booked their place. If you haven't already made plans to join us, download our Congress brochure or visit our website for the latest technical programme. 

Bojan Fras, Vice-governor of the Croatian National Bank, responsible for coordinating and managing the Legal Area and the Consumer Protection Monitoring Office will open our Congress, followed by José Garrido, Senior Counsel in the IMF’s Legal Department.

The second day of our Congress will start with Fabris Peruško, CEO and member of the Management Board of Fortenova Group, Croatia. Lord Justice Snowden from the Court of Appeal of England & Wales will then share with the audience his extensive experience in restructuring cases, followed by a discussion with other judges.

We will also be launching or first Yearbook at the Congress, entitled “Restructuring and Insolvency Tools in Times of Crisis” which links closely to the overall theme of our Congress:“Resilience in the face of adversity.” Make sure you are there to pick up your copy!

Our Academic Forum Annual Conference will take place from 5-6 October 2022 at the same venue. Registration for that event is now also open.

 

 

With thanks to our Congress Main Sponsor:

INSOL Europe CEO helps FILA celebrate 10 years in Helsinki

INSOL Europe’s Chief Executive Officer, Paul Newson, was invited to be the opening speaker at FILA’s tenth anniversary event in Helsinki, Finland, from 18-19 August.

Paul’s presentation was entitled ‘Responding to Change’ and started by giving the delegates a background to INSOL Europe, including how members can get involved at all levels, whether by simply attending events or contributing to one of our many working groups and forums. Paul then moved onto some of the hot topics of our profession such as cross-border schemes and plans - how they work in different jurisdictions, and the harmonization of insolvency laws at EU-level. 

Paul related the challenges that our profession is facing to the key topics to be discussed at the Annual Congress in Dubrovnik, before inviting the delegates to find out more about INSOL Europe and how we are working to get a better understanding of this new landscape and what insolvency and restructuring professionals may be able to offer their clients, what tools they have at their disposal in their respective countries and what is in store in terms of future regulation.

The Finnish Insolvency Law Association (FILA) was founded in 2011 and brings together lawyers specializing in insolvency law, as well as other professionals working with insolvency issues. The Association has around 250 members, the majority of whom are attorneys at law who act as administrators in bankruptcies and reorganization cases.

Read the full report by Paul Newson in the News section of our website.

Update on the Implementation of the EU Directive on Restructuring

‚ÄčAt the end of September 2022, 18 EU Member States have notified the European Commission of their compliance with the Directive on Restructuring and Insolvency (EU Directive 2019/1023), namely Greece, Austria, France, Germany, Portugal, Croatia, Lithuania, Slovakia, Estonia, Romania, Denmark, Italy, Slovenia, Finland, Sweden, Hungary, Ireland and lastly, Spain.

The progress of the implementation of the EU Directive in EU Member States is still available on the INSOL Europe website here.

A few numbers of EU Member States will implement the EU Directive in their national laws only after the Summer break including Poland, Latvia, Malta, Luxembourg, Bulgaria, Belgium, Czech Republic, Cyprus and the Netherlands, mainly due to the delay of the national legislative processes. The final implementation of the EU Directive by all EU Member States is then expected for early 2023.

If you are interested to explore whether the implementation of the EU Restructuring Directive has led to the creation of new proceedings or to minor/major changes to existing proceedings or under which conditions creditors can be crammed down for a restructuring plan to be approved by a court, please visit our webpage dedicated to the INSOL Europe/LexisPSL Research on implementation of the EU Directive 2019/1023.

At the time of writing, reports are available for the following countries: Austria, Croatia, Cyprus (on the Draft Bill), Czech Republic (on the Draft Bill), Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Portugal, Romania, Slovakia, Slovenia (on the Draft Bill), Spain, Sweden, The Netherlands (on the Draft Bill) and The UK (before Brexit).

Reports from Poland, Latvia, Malta, Luxembourg, Bulgaria and Belgium are not expected before November 2022 (or even later).

We are grateful to all INSOL Europe Country Coordinators and experts from the EU Study Group or external contributors for their highly valuable input which made this research possible for the benefit of all the INSOL Europe members.

  

Richard Turton Award 2022 Winner Announced

The Richard Turton Award Panel is pleased to announce that the 2022 winner is Kayode Olude from Nigeria.

Kayode is currently studying for a Master of Laws in International Commercial Law at University of Nottingham, his thesis expounding on the prospects of ratification of UNCITRAL Model Laws on cross-border insolvency in Africa’s largest economy – Nigeria, seeking to draw lessons from the experience of other jurisdictions that have adopted the model laws.

Kayode will be writing a paper “Quest for EU harmonisation of cross-border insolvency rules between EU and Non-EU countries; challenges and prospects”, which will be published in summary in Eurofenix and in full on our website

As part of the award, Mr Olude is invited to attend the INSOL Europe conference in Dubrovnik, Croatia in October.

The panel adjudicating this year’s applications was made up of:
•    Neil Cooper, INSOL International
•    Nicky Fisher, R3
•    Maurice Moses, IPA
•    Robert van Galen, INSOL Europe

Visit our website for more details of the Richard Turton Award and who is eligible.

An Insolvency Regime to Support the Digital Economy

Recent years have seen increasing reliance on complex technologies in ways of work, home life and leisure, a trend which was accelerated by the COVID-19 pandemic. The potential for insolvencies among the companies that provide these services requires attention as providers can fail and some already have. Dependence on a few key providers of digital services brings the prospect of exploitation by hackers as well as a possible ‘too big to fail’ scenario and, as with the banking crisis, the possibility of problems caused by a lack of knowledge of the technologies that we rely on. 

There is presently a risk of loss of service in the event of an insolvency but no ready means under typical insolvency procedures for a temporary continuation of service while data is recovered and alternative services are sourced, leaving business and consumer users potentially vulnerable. Any users of online services will be familiar with the disruption that even a temporary outage can bring and an insolvency in this sector therefore has the potential to cause significant losses. 

While it might be expected that customers will fund ongoing services there are potential collective action problems and other cases may be more complicated. Digital services contain many layers of involvement by different service suppliers, each presenting risks of loss of service. 

A forthcoming article in Eurofenix by Rebecca Parry (Professor, Nottingham Law School, Nottingham Trent University) will reflect on how insolvency laws can proactively be adapted to better serve customers in this sector.

Inside Story: Justified Implementation of the EIR and National Laws - Avoiding Unjust Forum Shopping From Estonia to Ireland

The Estonian Chocolate brand “Kalev” is one of the most recognised trademarks in Estonia. Unfortunately, Oliver Kruuda, the person who was behind this trademark, is also well known, but not in such a good light.

He was a very successful businessman until recently, when he tried to escape from obligations arising in Estonia by relocating himself to Dublin with the hope of having a fresh start within a year under Irish insolvency law. 

Luckily, the Estonian and Irish Courts implemented national laws and the European Insolvency Regulation (EIR) correctly, meaning this little trick by an Estonian businessman did not succeed. Overall, justice was delivered and the ancient Greek god Themis supervised the situation perfectly.

The Creditor filed a petition against Mr Kruuda (“the Debtor”) with the Tartu County Court of Estonia on 14 May 2021, seeking a declaration of bankruptcy against the Debtor. The Tartu County Court appointed an interim trustee and restrained the Debtor’s rights to transfer assets and applied a general stay to enforcement proceedings on 7 June 2021. 

Without any knowledge of the Estonian courts, around the same time, the Debtor turned to an Irish Court, which declared the Debtor’s bankruptcy on 28 June 2021. Of course, the Debtor did not inform the Irish Court either about the bankruptcy proceeding in Estonia. Later, on the 1 July 2021, the Debtor informed the Tartu County Court about the declaration of bankruptcy in Ireland and petitioned for the termination of the Estonian bankruptcy proceeding. Nevertheless, the Tartu County Court declared the bankruptcy of the Debtor on 19 October 2021.

Read the full article by Anto Kasak and Kedli Anvelt and previous INSIDE Stories on our website here.

New: Eurofenix Autumn Edition Published

The Autumn edition of Eurofenix has just been published and is now available to view online here. 

The deadline for European countries to transpose the EU Directive has now passed, but at the time of writing, only 18 EU Member States (out of 27) had complied with the Directive (19 now given that Spain passed its reform to its Insolvency Act in the end of August). Thus, many of the articles in the new issue logically address either the new legislation on restructuring frameworks in some the EU Member States or its implementation in the case of early adopters.

Articles include the first application of the cross class cramdown under an accelerated safeguard in France, the introduction of a preventive restructuring procedure under the likelihood of insolvency and class formation in Denmark, and a comparison between the changes in Czech Republic and Slovakia. The protection of new and interim financing under the EU Directive and its implementation in countries such as The Netherlands, Germany or France is also discussed.

Read the articles mentioned above and more in the new edition of Eurofenix 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

 
Member Survey - We need your views!

Your experience as a valued member of INSOL Europe is at the heart of all our activities. We are continuing our research into how well we are meeting the needs and expectations of our members, and how we might change what we offer in the future.

Your feedback is a very important part of this process, so please take 5 minutes to complete our survey and let us know what you think. Your responses are completely anonymous.

> Click here to start our survey

Thank you in advance for your participation! 

Private Equity Awards - Paris - Member Offer

INSOL Europe is a partner of the Private Equity Exchange & Awards organized by Leaders League. The event will take place on October 19th at the Pavillon d'Armenonville, from 8am to 10:30pm.

Nearly 1000 key players in the European private equity industry will gather for conferences, one-to-one meetings and awards. The event allows an audience mainly composed of business leaders, investors and investment funds to exchange and share on current topics and to celebrate the best players in the industry. 

Jean Baron, our INSOL Europe Country Co-ordinator for France, will be moderating Track 3 Panel 3 session: “Management Team and Turnaround: Align, Impulse, Rebound”.

To learn more about this unmissable event, go directly to the official website and discover the program, the speakers and the awarded categories! 

Register here and use the following code to get 15% discount off the registration fee: PARTNER22

 

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.