Marcel Groenewegen
President of
INSOL Europe

Our 2021 Spring Online Conference: 'Don't Worry, Restructure!' is open for registration and is now only 6 weeks away. Conference Co-Chairs Clarissa Nitsch (Co-Chair of the Young Members Group / Binder Groesswang Attorneys at Law, Austria) and John Briggs (South Square, UK) are preparing a fascinating programme for INSOL Europe: not to be missed! 

There will be two sessions (4 & 18 March) held on Zoom, each lasting 1.5 hours, both facilitated by Chris Laughton (Mercer & Hole, UK). Each session will feature a Keynote speaker and two live panels with a hand-picked selection of international experts speaking on a range of highly relevant and important topics including:

• EU Directive on Restructuring and Insolvency (update on transposition)
• Aviation in crisis
• Jurisdiction, recognition and enforcement under Brexit: the UK and the EU
• Experiences on the front line – insolvency practice in the pandemic.

Registration will be €50+VAT for members or €75+VAT for non-members.

Visit our website for the latest updates and to register your place!

Kindly Sponsored by

The second Academic Forum Webinar took place on 20 January 2021, attracting 55 participants from 23 different jurisdictions, report Myriam Mailly and Paul Omar.

Following a welcome by Marcel Groenewegen (INSOL Europe President), Professor Tomáš Richter (IEAF Chair; Charles University Prague) began proceedings with an appreciation for Edwin Coe LLP sponsorship. The technical programme featured presentations by Professor Gerard McCormack (Leeds) and Professor Antonio Leandro (Bari).

In his presentation, Professor McCormack suggested that both the Preventive Restructuring Directive (PRD) and UK CIGA 2020 are at the forefront of international insolvency developments. Dealing with the PRD framework set out in Articles 6-7, the observation is that there is a great deal of optionality available. The rationale for the PRD framework is the prisoner’s dilemma, its utility being to offer a free space and protection from creditor threats to block business continuity. In fact, the PRD can be viewed as building on a restructuring strategy founded upon the interests of the many outweighing those of the few.

Next, Professor Leandro stressed how primary and secondary rules offer protection for cross-border investors and the protection of legitimate interests. EU freedom of movement for capital has witnessed a trend from exclusive protection of investment through arbitration to justiciability before national courts. In this light, the impact of insolvency proceedings on investment decisions (intra-EU or external) needs to be considered as does a possible need to harmonise the “normative space”. The advent of the PRD offers the context for a harmonisation initiative, which would enhance the Capital Markets Union (CMU), thus improving access to credit, creating predictable outcomes and ensuring compliance with “fair and equitable treatment” standard.

Ending the session, Professor Richter thanked the speakers for their thought-provoking presentations and also invited further expressions of interest for future webinars being planned.

The presentation slides and a link to the conference recording will be published on the Academic Forum web-page along with a more detailed report.

On 1 January 2021, the Dutch interpretation of the “debtor-in-possession proceedings”: The Wet Homologatie Onderhands Akkoord (WHOA), came into force. The WHOA provides for a brand-new restructuring tool, which, in our view, is a very welcome addition to the Dutch Bankruptcy Code, which dates back to 1896 and basically consists of only two types of formal insolvency proceedings for enterprises: suspension of payments and bankruptcy. 

The WHOA, also referred to in some circles as the “Dutch Scheme”, enables viable enterprises in financial distress to restructure their liabilities on a going concern basis via a restructuring plan. 

This Inside Story by Jasper Berkenbosch (Partner, Business Restructuring and Reorganization Practice, Jones Day, Amsterdam, The Netherlands) and Sid Pepels (Associate, Business Restructuring and Reorganization Practice, Jones Day, Amsterdam, The Netherlands; Doctoral Researcher, Radboud University Nijmegen, The Netherlands) briefly touches upon several of the Dutch Scheme’s key features, and contemplates on the role that this new Dutch proceeding may play in the European restructuring practice. Will it turn the Netherlands into the new restructuring hub? Read the full story and other articles here.

If you would like the opportunity to have your Inside Story published in a future edition, please email Communications Manager, Paul Newson for details.

As noted in the November newsletter, the European Commission has launched the process building up to a new instrument in the insolvency law field. Building on the success of the European Insolvency Regulation (Recast) 2015 and the Preventive Restructuring Directive 2019, DG Justice has taken the lead in a project arising from the work of the Experts Group on Restructuring and Insolvency and has identified possible avenues to pursue towards the convergence of insolvency law rules within the EU.

Areas of interest announced so far for this initiative include the prerequisites for commencement of proceedings (including a definition of insolvency); avoidance actions and the effects of claw-back rights; asset-tracing frameworks; directors’ duties in the vicinity of insolvency; the position of secured creditors and the balance between secured creditors and other stakeholders (e.g., employees, suppliers); as well as the issue of court expertise and the training of judges.

Following on the first phase of consultation in November 2020, in which feedback on an Inception Assessment was sought by DG Justice about the desirability of an initiative, a second phase in the consultation process has now been opened. This invites responses on the areas already identified as possible subjects of the initiative, particularly seeking statistical support for priorities to be taken into account in the next phases leading to the drafting of a text.

This is a further excellent opportunity for INSOL Europe members to help determine the shape of future insolvency law in Europe by assisting in the formulation of priorities for the European Commission initiative. To this end, INSOL Europe members in all jurisdictions, but especially those in recent EU accession and candidate countries, can help by filling out the online questionnaire, which is available at the European Commission website.

Please note that there is a simple registration process to access the questionnaire and that the deadline is Friday 26 March 2021.

It is our pleasure to announce the launch of the European Insolvency and Restructuring Journal (EIRJ): the new online open access journal dedicated to insolvency and restructuring law in Europe (https://eirjournal.com). EIRJ is an initiative of professors Michael Veder and Ben Schuijling of the Radboud Business Law Institute of the Faculty of Law at Radboud University (Nijmegen, the Netherlands) and has been set up in cooperation with INSOL Europe and the Academic Forum of INSOL Europe. EIRJ is published by LexIQ B.V.

EIRJ is an online, fully open access-based journal. EIRJ publishes articles with an academic connotation, articles with a practitioner connotation as well as case notes. EIRJ welcomes the online submission of articles and case notes to be considered for publication. All case notes and articles that are published in EIRJ are subject to a rigorous evaluation by the Editorial Board (and, where appropriate, other specialists in the field) by means of double-blind peer review. Each of the members of the Editorial Board of EIRJ is a distinguished academic or practitioner with an established international reputation in the field of cross-border insolvency and restructuring. EIRJ looks forward to your contributions!

As well as the events mentioned above, there are a few new events coming up in the next few weeks to put into your diary:

• 2 & 3 February: Fraud Advisory Panel, INSOL Europe & R3 Virtual Fraud Conference - Preparing for the New World: A Toolkit For Action. Last chance to register this week!
• 1 March - 8 March: IWIRC and III 'Women at the Forefront of International Insolvency Symposium' featuring 6 panels focusing on International Insolvency issues.  With over 30 women from 20 different countries on the panels, this is a first of its kind symposium. Further information here.
• 8 March - International Women's Day: There will be a very special leadership panel with seven of the female Chairs/Presidents of the leading insolvency associations including Piya Mukherjee, INSOL Europe's immediate past-president. Further information here.
• 15 April: INSOL Europe & INSOL International Joint Online Event - Save the date!