We are very pleased to announce the launch of the sixth volume in a series of publications by INSOL Europe’s Judicial Wing titled “COVID-19: Which practical measures adapted by the insolvency courts because of the pandemic are desirable to become permanent changes of their practice?”

Download the publication in PDF format here

The articles in this volume describe how and to which extent the use of technology could help judges in different European countries to cope with the adverse impact of COVID-19 on their procedural work.

The information, authored by members of the Judicial Wing, shows a broad range of different approaches to deal with the conditions under the pandemic: from no specific legislation and measures at all to legislation permitting remote hearings quite liberally and an extensive use of audio-visual technology by some courts.

The articles show that the approaches taken to dealing with the pandemic largely depend on the available financial resources and on legal traditions. Therefore, a comparison of those approaches does not necessarily help in finding the best solution for a particular jurisdiction. However, the articles can help the reader to cherry-pick from the individual measures described in the articles and assemble them in a manner befitting the situation in the reader’s home jurisdiction.

We encourage the reader to read all articles in order to benefit from the entirety of useful information to be found there. Even though the use of audio-visual technology in civil and insolvency proceedings has not increased by a degree that might have been expected, the tenor of the articles is in favour of making remote hearings possible on a permanent basis. This tenor makes us confident that the number of technology prone judges will grow steadily and result in an increased but diligent use of the available technical equipment in civil and insolvency proceedings.

We thank all the members of the Judicial Wing who have contributed articles to this collection for their great efforts to bring this project to fruition. Our thanks are also extended to Michael Quinn’s former judicial assistant Lorna Reid for her support in all administrative matters and to INSOL Europe for its technical assistance.

Co-chairs of the Judicial Wing
Nicoleta Mirela Nastasie, Michael Quinn, Eberhard Nietze

The Richard Turton Award Panel is pleased to announce that the 2021 winner is Abbas Abbasov from Azerbaijan. Abbas is currently a PhD student at the Martin-Luther-Universität Halle-Wittenberg, in Germany, researching cross-border insolvency and restructuring law. He will be writing a paper on “Protection of dissenting creditors’ interests: Direct application of the “substantive fairness’’ test while considering the recognition of foreign restructuring plans”, which will be published in summary in one Eurofenix and in full here. As part of the award, Mr Abbasov is invited to attend the our Congress in Dublin in March 2022.

Apart from the European Insolvency Regulations applicable only between EU Member States, a few international instruments deal with the recognition issue relating to insolvency (and insolvency-related) judgments. Those international instruments, namely the UNCITRAL Model law (for those Member States which have enacted it), the Hague Convention or EU Rome I Regulation, may also be complemented by other specific private international rules. For third countries and the UK (as a consequence of Brexit), a great uncertainty remains therefore in terms of providing the necessary authority for the recognition of such judgments. The Joint project between LexisPSL and INSOL Europe on the recognition of foreign decisions in the 27 EU countries has been designed to address those situations and provide the readers with a description of each national recognition process applicable to those judgments.

As an added value, the proposal had been made by LexisPSL (UK) to make the exercise more concrete than a mere description of national provisions within the scope of this project. That is why the project contains the national provisions which would apply with regard to the recognition of proceedings commenced in the UK in respect of an English Part 26 scheme of arrangement or Part 26A restructuring plan (or the reasons why such recognition would be excluded). Indeed, this project includes restructuring proceedings and/or judgments commencing insolvency proceedings while international texts may exclude them from their scope of application.

This document was prepared by a team drawn from the INSOL Europe Country coordinators with the assistance of INSOL Europe members or other local experts where necessary to complete this valuable research project. Readers will find individuals answers of the contributors from the 27 EU countries but also a table summarising their findings which is reproduced in Appendix I of the publication. We hope that this publication will achieve its aim, namely to ensure that a proper consideration should be given to providing information for all professionals interested in questions arising under the International Private Law of Insolvency.

Download the final publication here. We wish you an insightful reading!

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.

Registration is now open for our Annual Congress in Dublin, 3-6 March 2022. Find out more and register your place here. [Read more]