Industry News Sponsored by

News from INSOL Europe
18 January 2022
In the week of 13 December 2021, UNCITRAL’s Working Group V on Insolvency Law met largely via UNCITRAL’s Interprefy platform, given the continued threat and restrictions of the COVID 19 pandemic (no schnitzel or strudel for the virtual attendees once again!). Quite quickly, the opening day of the session saw the ground-breaking and timely UNCITRAL Legislative Recommendations on Insolvency of Micro- and Small Enterprises finalised. This is a particularly important development in the current economic climate when MSMEs are facing financial difficulties worldwide.

On the second day, a potential practice or legislative guide on asset-tracing and recovery in insolvency proceedings was discussed. This project is particularly important, as an effective system of asset-tracing and recovery in insolvency would help to maximise the value of an insolvent estate while emphasising the protection of creditors. Although there are a number of challenges that will need to be overcome, such as how to deal with the era of digital trading, the project was viewed as, if nothing else, an educational and information sharing opportunity for which a toolbox could be developed that could aid jurisdictions that are currently without strong mechanisms in this area.

The third topic discussed in the week pertained to applicable law in insolvency proceedings. It was noted that this topic was obviously important, but also quite complex. A particular observation was that harmonising applicable law in insolvency proceedings and reinforcing the application of the lex fori concursus would enhance legal certainty and predictability, prevent abusive forum shopping, and reduce complexities and costs of insolvency proceedings. This idea is of course not unfamiliar to those well-versed in European cross-border insolvency discourse and it is perhaps not surprising that the European Insolvency Regulation (Recast) was brought up on a number of occasions as an exemplar of how this has been accomplished elsewhere, though the appropriateness of any significant borrowing was also met with some caution and even trepidation.

The 59th Meeting of the UNCITRAL Working Group V was productive, if disappointing due to its virtual nature. The next session should be interesting with many difficult cross-border matters to discuss. There are also a new set of recommendations for MSMEs to look forward to, which will be timely for small businesses struggling under the economic impact of the COVID19 pandemic.

A full report by Jennifer L.L. Gant, INSOL Europe WGV Observer, can be downloaded here.
17 September 2021
Registration is now open for our Annual Congress in Dublin, 3-6 March 2022. Find out more and register your place here. [Read more]
16 September 2021
Thank you for tuning into our “Autumn Speed Networking” session on Thursday, 2 September. We hope you made some new connections with like-minded professionals or managed to catch up with old friends.

We managed to get nearly 40 Young Members and Non-Members of INSOL Europe online. Our dear president, Marcel Groenewegen, opened the event which was a great honor for us and so was the participation of our long time sponsor, Robert Schiebe of Schiebe und Collegen, who had an active role in the session again. 

As Co-chairs it was a great opportunity to give you some background information on what we’ve been doing over the Summer and what our plans are for later this year and next year. It became clear that in the next six months the YMG will be firing on all cylinders: the Autumn Online Conference will include a YMG panel-discussion and a pre-Christmas event is being planned. Early in 2022 we are going “full steam ahead” to Dublin. Member or non-member - don’t miss the YMG drinks reception there! It’s the highlight of the Annual Congress for the young crowd. Last but not least, once more we will strengthen our cooperation with YANIL and with the Insolvency Commission of AIJA so that we have a chance to repeat the legendary time on Mallorca of 2019. 

The actual speed-networking sessions were once again a great success. All the participants had the possibility to meet old and new friends in four different sessions, which each lasted for four minutes. During the breaks between the speed-networking sessions, we had the possibility to exchange thoughts with the larger crowd. The discussion was so lively and the people were so active, we could have carried on for hours. We hope you had the same feeling and that each one of you uses the next opportunity to join in on our next speed networking event and that those of you who are not yet a registered member of INSOL Europe and the YMG feel that it’s time to change that.

If you need a reminder of how the session ran, please feel free to watch the recording on the Young Members Group website.
24 June 2021
In Quest of a Harmonisation: Tilting at Windmills?
Report by Myriam Mailly (Technical Officer) and Paul Omar (Technical Research Coordinator)

After finishing work on the Preventive Restructuring Directive (PRD) in 2019, the European Commission’s Experts’ Group in Restructuring and Insolvency (ECEG) resumed its work after a long hiatus in April 2021. This time, it is looking at new proposals for possible greater convergence in substantive insolvency law that have been floated in the wake of an outline impact assessment (December 2020) and a subsequent public consultation (open till April 2021).

Prompted by the Capital Markets Union (CMU) Action Plan and realisation of the internal market significance of insolvency law fragmentation arising from studies during the PRD development phase, the difference in insolvency outcomes is seen as a strong factor in investment decisions and a barrier to cross-border investments. As such, it has been felt necessary to examine whether further convergence or harmonisation can be attempted. A further study and impact assessment will be commissioned to confirm these findings as work progresses.

The role of the ECEG is to look at sensitive core aspects of insolvency law (often intertwined with other key aspects of domestic law) and to determine what might be possible for harmonisation. A “rich bouquet” of different issues has already been identified as possible targets during impact assessment, including some substantive topics, some procedural issues and some capacity building elements (including developing court and IOH capacity). In terms of a substantive approach, the ECEG is to work on outlining a variety of possible outcomes, ranging from the extent of harmonisation desired to the type of text that might embody the findings of the group.

Over the course of 2021, the plan is for the ECEG to meet 7 times with the ultimate endpoint scheduled for 2022 Q2. The ECEG is working via sub-groups (clusters) tasked with formulating recommendations on procedural issues, ranking of claims, asset-tracing, avoidance actions, directors’ liability, IOH qualifications and judicial training. The 3 meetings that have already occurred (12 April, 10 May and 22 June) have produced recommendations that are currently being examined by the European Commission.
22 March 2021
 
From 4 to 5 March 2021, the Stichting (Foundation) Bob Wessels Insolvency Law Collection (BWILC) organised the third edition of the PhD Workshop on European and International Insolvency Law. The participants had the chance to be part of an inspiring and interactive two-day virtual workshop.
 
PhD candidates were selected from applications from around the globe to present their ongoing research. The eight successful PhD candidates included Preeti Nalavadi (Adelaide University), Maryam Malakotipour (Amsterdam University), Sander Baeyens (KU Leuven University), Andrey Esmanskiy (Saint-Petersburg University), Vilija Mogenytė (Mykolas Romeris University), Emily Defreyne (Ghent University), Niccolò Usai (Florence University) and Richard Bradstreet (Cape Town University). The presentations covered a broad spectrum of topics, including insolvency and bitcoins, subordination of (affiliated) claims, executory contracts, public policy and the role of the insolvency law practitioner, employee protection in insolvency, as well as discussions about insolvency law from an economics perspective.
 
The BWILC board, composed of Professors Matthias HaentjensReinout VriesendorpStephan MadausJoeri Vananroyeand Dr. Paul Omar, along with Professor Bob Wessels (patron) and alumni from previous workshops were present. Each presentation was followed by an extensive Q&A session, raising questions and providing insightful feedback to further the research. 
 
At the end of the PhD Workshop, three prizes were awarded by the BWILC board to Niccolò Usai (1st place), Maryam Malakotipour (2nd place) and Sander Baeyens (3rd place) as a recognition of the most original presentations. Emily Defreyne received an honourable mention for her presentation. In 2022, the board hopes to organise a fourth edition of this BWILC PhD Workshop live in Leiden.  
 
Maryam Malakotipour and Niccolò Usai