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Dear Members

Even though I thought the concept of daylight saving time was being phased out, the clocks have just gone forward and Spring has truly sprung.

Your Council had a very well attended and productive in-person meeting in my hometown of Malahide at the beginning of the month. One of the main action points to emerge was that we will conduct a 'mid-term' review of our strategic plan for 2020-2025 and begin the groundwork for a strategic framework for 2025-2030. Please let us know if you are interested in getting involved in the next strategic framework; don't assume that it is limited to Council members.

One of the most visible changes brought about by the strategic plan for 2020-2025 was the formation of the Membership Development Committee, which incorporates the appointment and activities of our Country Co-ordinators. The growing success of this initiative means that we now have four co-operation agreements in place with national associations in Belgium, Croatia, Ireland and Romania, and just over 1300 members overall.

On Monday I was very happy to be back in London where I attended the joint INSOL Europe, R3 and Fraud Advisory Panel conference. The conference was held in the Royal College of Physicians and was very well organised and attended. Your UK Council member Frances Coulson was the facilitator for the day. Thanks to a session led by Council member Carmel King I now understand a little about the metaverse and how the monetisation of that space will attract and facilitate fraudulent activity. Our CEO Paul Newson and COO Hannah Denney were also on hand to run our stand and network with attendees.

We have had quite a few inquiries about our Annual Congress in Amsterdam (12-15 October) and I am pleased to report that registration has now gone live. I am confident that due to the ongoing work of our excellent technical committee, co-chaired by Alice van der Schee (Van Benthem & Keulen, The Netherlands) and Carmel King (Grant Thornton, UK) and led by our Chief Technical Officer Emmanuelle Inacio, that there will be something of interest to everyone. Book early and often! See below for registration details.

The legal profession in Ireland is split between solicitors and advocates. The Bar Council of Ireland (the advocates) have formed a new insolvency bar association and I have been invited in my capacity as President of INSOL Europe to speak at their inaugural conference on Friday. I will of course be promoting INSOL Europe and I have also elected to talk about the UNCITRAL model law on cross-border insolvency. This is something which I feel merits closer scrutiny here in Ireland and in other jurisdictions. Last year was the 25th anniversary of the adoption of the model law and this year is the 5th anniversary of the model law on recognition and enforcement of insolvency-related judgments.

INSOL Europe has accepted an invitation to participate in its own right at the next working group of UNCITRAL and events to mark the 5th anniversary of the model law on insolvency judgments. The events will take place in New York from 17-20 April and we will be ably represented by German Council member Florian Bruder and our immediate past-president Frank Tschentscher.

The next INSOL Europe event on my agenda is the EECC conference in Vilnius, Lithuania from 18-19 May. I am really looking forward to this as I have not spent any length of time in Vilnius before. The importance of supporting the professions, our events, event sponsors and members in the Baltic region cannot be overstated. I hope as many of you as possible can join us for what promises to be an interesting event.

Geriausi linkėjimai,

Barry Cahir
President, INSOL Europe

Barry Cahir
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

2023 Annual Congress - Amsterdam - Registration Now Open!

Registration is now open for our
Annual Congress in Amsterdam, 12-15 October

Download the Congress Brochure • Technical Programme

Early booking deadline 8 June 2023

With thanks to our Main Sponsor:

Academic Conference: Registration Opening Soon!

The Academic Forum of INSOL Europe will be hosting its 19th annual conference in Amsterdam, The Netherlands, on Wednesday 11 – Thursday 12 October 2023, immediately prior to INSOL Europe's main Annual Congress taking place in Amsterdam from 12 - 15 October 2023.

The Chairs of Academic Forum are currently finalising the technical programme which will be based on the theme: “The Perpetual Renewal of European Insolvency Law”.

We are pleased to announce that Bob Wessels, emeritus professor of International Insolvency Law (University of Leiden, Leiden Law School, The Netherlands) will be our Keynote speaker for what promises to be a very interesting conference.

Further details will be posted on the Academic Forum website.

New Technical Publication Launched: Dubrovnik Papers

“Insolvency law in times of crisis” was the focus of the discussions held at the last INSOL Europe Academic Forum Annual Conference in October 2022.

The purpose of this e-book, which consists of the papers delivered at the INSOL Europe Academic Forum Annual Conference, is to display varied perspectives on the approaches adopted by different European jurisdictions in times of crisis.

Submissions for this collection have come from prominent academics, researchers, and practitioners in the field, representing a variety of jurisdictions. The content of this volume is of high quality and offers thought-provoking and truly innovative insights into the contemporary issues facing insolvency and restructuring laws and practices across Europe and beyond. The papers demonstrate the issues associated with the varied nature of crisis, the difficulties of legal solutions to be balancing predictability with flexibility, as well as the need for further reforms in some jurisdictions.

The book is published online and is available as a free download for members.
Visit our website here to download your copy.

Richard Turton Award: 2023 Competition Now Open!

Richard Turton had a unique role in the formation and management of INSOL Europe,
INSOL International, the English Insolvency Practitioners Association and R3, the Association of Business Recovery Professionals in the UK. In recognition of his achievements, these four organisations jointly created an award in memory of Richard. The 2023 competition is now open for anyone who is a national of a developing or emerging nation; works in or studies insolvency & restructuring law and practice and is under 35 years of age.

The successful applicant will be asked to write a paper of 3,000 words on a subject of insolvency or turnaround agreed with the panel. This paper will be published in summary in one or more of the four Member Associations' journals and in full on their websites. The winner will be invited to attend the INSOL Europe Annual Congress in Amsterdam, 12-15 October 2023, expenses paid. Applications deadline: 23 June 2023.

For more information and to apply, visit the Richard Turton Award page here.

Insolvency & Restructuring Statistics Update from Poland

Paweł Kuglarz and Mateusz Kaliński from Tatara & Partners, Krakow, Poland have provided an update on Insolvency & Restructuring statistics in Poland. What do they tell us about the efficiency of the proceedings?

It goes without saying that we are at the brink of economic crisis. Thus we all need in Europe efficient insolvency and restructuring tools, and, where needed, speedy courts.

Within this context, some lessons may be learned from statistics analysis in Poland, showing rapid growth in consumer bankruptcies after transfer to the insolvency practitioners, and the huge popularity of out-of-court restructuring within arrangement approval proceedings.

In Poland, in 2015 we had only 2,112 consumer bankruptcies, comparing to 750 of corporate insolvencies.
In 2016 consumers raised up to: 4,438, while corporate insolvencies 605 and restructurings (which were formally separated from insolvencies beginning 2016) 216.
In 2017 consumers: 5,535, enterprises insolvencies: 591 and 348 restructurings.
In 2018: consumers: 6,570; enterprises insolvencies: 615; restructurings: 465.
In 2019: consumers: 7,944; enterprises insolvencies: 586; restructurings: 467.
In 2020: consumers: 13,092; enterprises insolvencies: 587; restructurings: 801, including 396 simplified restructurings – mostly out-of-court.
In 2021: consumers: 18,207; enterprises insolvencies: 404; restructurings: 1,888, including 1,648 simplified restructuring proceedings.
In 2022: consumers: 15,622, enterprises insolvencies: 360; restructurings: 2,379, including 1,906 of amended arrangement approval proceedings.

Growth in year 2020 and subsequently in 2021 in consumer bankruptcies can be associated with the change in Polish law, where these bankruptcies went into offices of restructuring advisor, who carry on administrative burden of conducting the proceedings.

On the other hand, growth in restructurings – significantly from 2020 and so on, can be explained by introducing Simplified Restructuring Proceedings, and later on amendments to the arrangement approval proceedings, which is not carried out in courts – like enterprises insolvencies is.

What is more, from 01/12/2021 – introducing National Debtors Register (Krajowy Rejestr Zadłużonych), for court-based restructurings applied 438 enterprises, and while having opened 183 cases. In the same time (until 12/03/2023), arrangement approval proceedings amounted to 2,974 cases, and the court approved 422 arrangements and the arrangement has been concluded in 1,269 cases. Some cases are however pending.

From these statistics, in our view, one could learn that moving cases out of court can boost the number and efficiency of restructurings. On the opposite side, giving more and more administrative obligations on courts, may lead to ineffectiveness, and slow carrying out the cases – what can be observed within enterprises insolvencies.

Source of all data: https://www.coig.com.pl/lista-upadlosci-firm.php and https://krz.ms.gov.pl/ [access: 17/03/2023]

Further statistics from Poland and from all jurisdictions can be found on our website here.

Inside Story - The Swiss Blocking Statute and Criminal Proceedings

In Switzerland, a strict blocking statute and the well-known banking secrecy make it difficult for the foreign insolvency office holder to seek information on the debtor’s assets from third parties (such as banks) prior to the recognition of the foreign insolvency decree.

Criminal proceedings, however, offer a precious tool to obtain urgent freezing and disclosure orders at the earliest stage of fraud-related cases. What does this mean for foreign IPs?

Embedded in Article 271, para. 1 of the Swiss Criminal Code, the Swiss Blocking Statute provides that a person shall be liable to a custodial sentence not exceeding three years or to a monetary penalty, or, in serious cases, to a custodial sentence of not less than one year, if they:

•   carry out activities on behalf of a foreign State on Swiss territory;
•   without lawful authority; and
•   such activities are normally the responsibility of a public authority or public official.

Foreign insolvency office holders qualify as persons who carry out activities on behalf of a foreign State, as they are appointed by a foreign Court in order to conduct a non-voluntary liquidation process pursuant to insolvency laws. Thus, they have to be vested with lawful authority by seeking the recognition of the foreign insolvency decree before the Swiss civil courts, pursuant to Articles 174ff. of the Swiss Private International Law Act. As Switzerland is not an EU country, the EU rules do not apply. However, since 2019, a new cross-border insolvency act applies in the country, which is deemed compatible with the UNCITRAL Model Law. In particular, the requirement of reciprocity has been abolished.

Read the full story here by Antonia Mottironi (Partner, Ardenter Law, Geneva, Switzerland)

UNCITRAL Celebrates its 25th Anniversary

The 61st session of Working Group V (Insolvency Law) took place in Vienna on 12-16 December 2022, resuming the face-to-face format last seen prior to the pandemic. On the agenda was further discussion, continued from the two prior sessions, of two proposals on civil asset tracing and recovery tools as well as applicable law in insolvency proceedings, both proposals having been promoted by the European Union and EU member states for inclusion on the UNCITRAL work docket. At this session, an important advance in the progress of the asset tracing proposal was the production of an inventory of tracing and recovery tools to serve as a benchmark for future recommendations in this area.

The highlight of the week, though, was the marking of the silver jubilee of the UNCITRAL Model Law on Cross-Border Insolvency (“Model Law”), adopted in 1997. In fact, preceding this and accompanying the deliberations during this session was a report from the panel discussion on insolvency law reforms across the Latin American and European regions, held on 15 July 2022, which charted the experience post-adoption of the Model Law. At this event, stakeholders in the insolvency and restructuring fields were able to feed back to the UNCITRAL Commission lessons learnt during assessment exercises and knowledge sharing in these fields with respect to the relevance of UNCITRAL texts, guidance and reference materials in the reform process.

On Friday 16 December, the final event in the silver jubilee celebrations took place with a one-day conference on the Model Law, as seen from the perspective of policy-makers, the judiciary and practitioners. Speakers gave presentations, inter alia, on the evolution of adoption of the Model Law, the further benefits of international harmonisation and the relationship of the Model Law to further texts produced by Working Group V, while judicial views were canvassed on procedural and substantive issues occasioned by cross-border recognition and the need for judicial training in this area with leading practitioners also invited to report on lessons learnt from 25 years of using the Model Law in cross-border cases and give their perspective for the future of the initiative

2023 EECC Conference: Now only 6 weeks to go!

Download the Congress Brochure • Technical Programme

With thanks to our Main Sponsor:

Young Members Group to join forces with AIJA in Seville, Spain

The Young Members Group of INSOL Europe and the Insolvency Commission of AIJA are to join forces again and hold a seminar in the beautiful city of Seville from 29 June until 1 July 2023. The format will be similar to the very successful seminar on Mallorca and the technical committee is working hard to put together an attractive and special technical programme, as well as some social highlights as a frame for a wonderful weekend.

Registration will be opening soon here.

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.