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Dear Members

It has been a very wet Summer in Ireland. While I feel the constant rain is infinitely better than the extremes of heat in Southern Europe and other parts of the Globe, it can bring its own problems here and elsewhere. 
 
Looking at the bigger picture, it suggests the need for a significant restructure on many levels. The advantages of our Irish climate include that it is optimal for growing grass-fed animals (think dairy, beef and lamb) and if we harness onshore and offshore wind, we could significantly reduce our dependence on fossil fuels. I am not a fan generally of government intervention in the market but imagine if instead of reducing the national dairy herd to accommodate a reduction in methane gas emission, we could lean into our strengths and ensure that surplus is traded optimally. As against that, overconcentration of production has its own supply and environmental issues. And some of us remember the EU butter mountains and milk lakes in the 1980s. But just as insolvency laws become more harmonised globally and not just within the EU (there are recognisable commonalities in the insolvency laws of most modern economies at this point) shouldn’t we look differently at global trade?
 
I will ponder this as I head to Scotland for our family holiday (and quite possibly more rain). As you will be reminded in this issue, there is lots to do when you get back to your desk such as vote in our Council elections, book the conference and make your travel arrangements for Amsterdam! As if that is not enough, we are also seeking expressions of interest for next year’s Annual Congress in Sorrento, especially from new speakers. The INSOL Europe machine never stops churning – with thanks in particular to Paul Newson, Hannah Denney, Emmanuelle Inacio and their teams.
 
I look forward to seeing as many of you as possible in Amsterdam, if not before.

Barry Cahir
President, INSOL Europe

 

Barry Cahir
President of
INSOL Europe

 

This issue is kindly
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Richard Turton Award 2023 Winner Announced

The Richard Turton Award Panel is pleased to announce that the 2023 winner is Marinela Majnova from North Macedonia. 

Marinela is a Ph.D. candidate at the University of Ljubljana, School of Economics and Business. Marinela will be writing a paper on “Consumer Bankruptcy and the Western Balkan Countries: why do they need it?”, which will be published in summary in one or more of the supporting Associations' journals and in full on our website.

As part of the award, Ms Majnova is invited to attend the INSOL Europe Annual Congress in Amsterdam in October.

We would like to congratulate Marinela on her excellent application, and also thank all the candidates who applied for the award this year and wish them a successful career in their chosen field.

Full details of the Turton Award and papers of the previous winners can be found here.

Annual Congress 2024, Sorrento: We need your help!
 

Call for Expressions of Interest

While we are looking forward to seeing you all at our forthcoming Annual Congress in Amsterdam in October, you may be surprised to learn that we have already started planning our 2024 Congress, which will be held in Sorrento from 3 to 6 October 2024.

The Co-Chairs of the Technical Committee for the INSOL Europe 2024 Sorrento Congress, Rita Gismondi (Gianni & Origoni, Italy) and Bart De Moor (Strelia, Belgium)invite all INSOL Europe members to express their interest to participate as speakers at our flagship event.

All expressions of interest should be sent to Emmanuelle Inacio, and should indicate:
(a) the speaker’s nationality, affiliation and qualifications,
(b) the topic on which the speaker would be interested in speaking, and
(c) a short statement as to what unique or compelling perspective the speaker would like to bring to the congress.

The Technical Committee seeks in particular proposals from speakers who have not been speakers at the last two Annual Congresses.

Expressions of interest should be sent as early as possible, no later than 30 September 2023.
All expressions of interest will be considered by the Technical Committee, although due to the large number the Committee expects to receive, the Committee likely will not be able to accommodate all, or even most, requests.

 
Have you voted in our Council Elections?

Now that the closing date of 21 July for receipt of nominations has passed, we can confirm the following situation:

Florian Bruder (Germany) will retain his seat for a second term. David Sequeria Dinis (Portugal) and Patrizia Riva (Italy) were the only nominees for their respective seats, and will therefore automatically be elected to Council with effect from 12 October 2023.

The UK seat has three nominations: Ian Benjamin, Robert Paterson and Simeon Gilchrist whilst the non-reserved general seat has two: Francisco Patricio (Portugal) and Incoronato Cruciano (Italian but living and working in Germany).

All members can vote on the general seat whilst UK members only can vote for the UK seat.

Full details and the voting link can be found on our website.

National Insolvency Statistics Update: The United Kingdom

Frances Coulson, Partner, Head of Insolvency & Restructuring, Wedlake Bell LLP and INSOL Europe Country Coordinator has summarised recent statistics in the UK.

On 28th July 2023, the Insolvency Service in England published its latest insolvency statistics for the period April to June 2023. Insolvency Service Official Statistics - GOV.UK (www.gov.uk) The announcement only relates to corporate insolvencies.

Corporate insolvency rates have risen sharply being "the highest since Q2 2009 and 9% higher than in Q1 2023 and 13% higher than in Q2 2022.". 

A large proportion of these insolvencies are voluntary 'shut downs' of smaller businesses by directors and shareholders -creditors voluntary liquidations ("CVLs"). The number of CVLs was the highest quarterly level since the earliest publication of these statistics in 1960. 

Overall there were 6,342 (seasonally adjusted) registered company insolvencies, according to the government, comprising 5,240 creditors’ voluntary liquidations, 637 compulsory liquidations (petitions largely by HM Revenue & Customs who are continuing to get their petitions back up to pre pandemic rates), 409 administrations and 56 company voluntary arrangements (CVAs).

It is apparent that in the UK more and more businesses are struggling to make ends meet. This is hardly a surprise given that their outgoings have increased with significant rises in overheads due to inflation and in the cost of debt servicing due to persistent increases in interest rates.  Wage pressures are a major issue. Their customers are being squeezed for similar reasons which will in turn lead to slower payment.  

Of course anecdotally, lots of businesses have been teetering on the brink of insolvency for a several years, impacted by Covid and other market challenges.  Inflation and interest rate increases it appears are now pushing them over the edge. Companies are "throwing in the towel". 

There is no obvious light at the end of the tunnel, at least not in the short term. However, for the optimists amongst us, the UK rate of inflation dropped a little in June and the Bank of England raised the base rate on 3rd August 2023 again, determined to keep working to reduce inflationary pressures. It seems likely that rate rises will continue but it is to be hoped they can start to drop in 2024. Furthermore it is possible that this increase in insolvencies will be finally clearing out some of the so called "zombie companies" which have limped along (some since the financial crisis of 2008) managing to keep going because of low interest rates and costs. This might well be a good thing in the medium term improving the business and competitiveness of better quality companies.

Further statistics from The UK and from other jurisdictions can be found on our website here.

 

Litigation: A valuable asset class for Insolvency Practitioners?

There is value in certainty, and it is hard to get certainty in litigation – which is an inherently risky endeavour. What are the options available to insolvency office holders when assessing potential litigation claims? Is a bird in the hand worth two in the bush?

Historically, litigation assets within insolvent estates have been difficult to realise and have often been overlooked as a result. In the past, valuable claims would be abandoned because of a lack of funds to pursue. Alternatively, they would be compromised at an early stage, on unfavourable terms, to protect against an aggressive defendant attempting to take advantage of the uncertainty caused by the insolvency. 

Often, key information required to evidence the case is missing or difficult to identify from within the insolvent entity’s books and records. Factual witnesses may be unwilling or unavailable to assist and give evidence.

Further complications arise where the insolvent entity’s business and/or assets are sold. Frequently, yet often unintentionally, valuable claims sold for nil consideration as sale and purchase agreements often sweep up unknown intangible assets - which may encompass valuable litigation claims. When the facts of the claim(s) come to light later on following investigation, the rights to the claim(s) have already been assigned. This creates a potential windfall for the new purchaser with no value to the original entity’s creditors.

Read the full article by Gwilym Jones (Managing Director, Henderson & Jones, London) and Piers Elliott (Director – Legal, Henderson & Jones, London) in the latest edition of Eurofenix (page 30-31).

Inside Story: The Directive in France - A new opportunity for Creditors?

The proposal for a Directive of the European Parliament and of the Council harmonising certain aspects of insolvency law of 7th December 2022 (“Proposal”), which, at the urging of the financial markets, is intended to give greater respect to creditors’ rights, has not gone unnoticed in France. 

In addition to the highly controversial simplified winding-up proceedings of insolvent micro-enterprises, the planned introduction of “pre-pack proceedings” à la française has been perceived with great scepticism in Germany, whereas in France the latter is noted with a certain satisfaction. 

Indeed, since their introduction in France in 2014, pre-pack proceedings are considered as one of the key restructuring tools for large companies. Nevertheless, in case of transposition into French law of the provisions as they stand now, French administrators may face the challenge of reconciling the principles of competitiveness and transparency required by the Directive for the sale process with the confidentiality that applies in France to the preparatory phase. 

The limited comments and discussions in Germany on creditors’ committees (Title VII of the Proposal) can probably be explained by the fact that creditors’ committees have been anchored in the German system for many years. In France, it was mainly argued that the interests of creditors were already sufficiently represented by the mandataire judiciaire  and the contrôleurs,  so that the introduction of creditors’ committees will not be necessary. The Proposal now gives France the opportunity to balance its debtor-friendly insolvency law in favour of a more equitable framework that upholds the rights of creditors, without giving-up its primary goal of preserving employment.

Read the full story here by Anja Droege Gagnier, and Amélie Dorst of BMH Avocats, Paris.

Read all past Inside Stories on our website here.

Monetary Claims of a Creditor associated with the Aggressor State

On 30 May 2023, the Supreme Court of UK rendered a decision in case No. 925/1248/21 on the bankruptcy of Joint-Stock Company Scientific-Production Enterprise Smila Electromechanical Plant (Smila, Ukraine).

In this decision, the moratorium on the fulfillment of obligations under which the Russian Federation or persons related to it are creditors, introduced on 3 March 2022 by Resolution No. 187 of the Cabinet of Ministers of Ukraine, was practically and finally implemented for the first time, reports Roman Marchenko, Attorney at Law, Senior Partner at Ilyashev & Partners, Insolvency Receiver.

Within the framework of case No. 925/1248/21, the Representative Office of Smila Electromechanical Plant LLC (Moscow, Russia) lodged a claim with monetary claims against the debtor for the amount exceeding EUR 600,000.

The courts of first and appellate instances came to conclusion that, according to the provisions of Article 17 of the Constitution of Ukraine and subparagraph 1, paragraph 1 of the Decree No. 187 of the Cabinet of Ministers of Ukraine, the stated claims of the creditor - a person associated with the aggressor state, cannot be fulfilled and recognized due to the current moratorium on their fulfillment, and therefore such a claim was left without consideration.

In its turn, the Supreme Court did not fully agree with the conclusions of the courts of previous instances and, by its Judgment dated 30 May 2023, cancelled the decisions of the court of appeal and the local court in terms of leaving the claim of Representative Office Smila Electromechanical Plant LLC (Moscow) without consideration, and in the cancelled part issued a new decision by which dismissed the above claim for the recognition of the monetary claims.

Considering for the fact that, according to Ukrainian legislation, the courts are obliged to take into account the conclusions on the application of the rules of law set forth in the judgments of the Supreme Court, we predict that now, when considering the monetary claims of creditors related to the aggressor state, the courts will be guided by the conclusions set forth in the above judgment and dismiss the claims of such creditors.

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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.