The First Virtual Fraud Conference took place on 2 and 3 February 2021, attracting more than 150 participants from jurisdictions all over the EU. The Fraud Conference was co-organised by R3, the UK Fraud Advisory Panel and INSOL Europe’s Anti-Fraud Forum. Report by Carmel King and Bart Heynickx, co-chairs of the Anti-Fraud Forum. 
 
Over two days, the conference provided over 15 live and on-demand sessions, joining more than 30 highly renowned speakers from a wide variety of institutions including the Cabinet Office, UNODC, HMRC, NCA, BBC, the House of Lords, Transparency International, the SFO, the EPPO and a range of chambers, legal and professional advisory firms. INSOL Europe’s own Marcel Groenewegen, Stephane Bonifassi and Hector Sbert kindly contributed their expertise.

Read the full report on the Anti-Fraud Forum News page here.

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 at: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12592-Insolvency-laws-increasing-convergence-of-national-laws-to-encourage-cross-border-investment/public-consultation
 
Please note that there is a simple registration process to access the questionnaire and that the deadline is Friday 26 March 2021.

We are pleased to announce that a tracker on the implementation of the EU restructuring and insolvency directive is now available on the INSOL Europe website at https://www.insol-europe.org/tracker-eu-directive-on-restructuring-and-insolvency
 
The tracker aims at identifying the different steps in the process of the implementation of the Restructuring and Insolvency Directive in all EU Member States, for examples the working groups work in progress (if any), official drafts publicly available, the use (or not) of the extension option by national policy makers and the final texts adopted by national legislators with relevant links when available. The tracker will be regularly updated until July 2022 which will be the ultimate deadline for Member States having used the extension option provided for by Article 34(2) of the Directive.
 
Relevant information regarding the Directive on Restructuring and Insolvency of 20 June 2019 remain available from: https://www.insol-europe.org/technical-content/eu-directive-on-restructuring-and-insolvenc

The European Commission has announced the first steps in a possible new instrument in the insolvency law field. Building on the success of the European Insolvency Regulation (Recast) 2015 and the recently introduced Preventive Restructuring Directive 2019, DG Justice is taking 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 for this initiative include the prerequisites for when insolvency proceedings should be commenced (including a definition of insolvency and entitlement to file for insolvency); the conditions for determining avoidance actions and the effects of claw-back rights; asset-tracing frameworks, including in the context of avoidance actions; a focus on directors’ duties in the vicinity of insolvency; the position of secured creditors in insolvency and the right balance between secured creditors and the need to protect other creditors (e.g. employees, suppliers); as well as the issue of court expertise and the training of judges.
 
The rationale for the initiative is the view that efficient insolvency laws are one of the key criteria for cross-border investors. The confidence in cross-border financing that would result from closer integration of insolvency law is believed ultimately to boost the European Union’s capital markets. This initiative has been designed to address what are perceived as the main discrepancies in national corporate insolvency laws (outside the banking sector), that many have recognised as potential obstacles to a well-functioning Capital Markets Union.
 
As part of this first phase of consultation, feedback on a “Roadmap” (or “Incept Impact Assessment”) has been sought by DG Justice. The feedback will help determine the scope of the project, its proposed content, the methodology of adoption (soft-law, Recommendation or Directive) as well as any ancillary considerations. The feedback will also help determine the pathway for progress and the further development and fine tuning of the initiative. It will also inform the next phase, likely to involve wider public consultation of stakeholders and interested parties, for which the European Commission will summarise any input received in a synopsis report explaining how this has informed the shape of the project.
 
This is a golden opportunity to help determine the shape of future insolvency law in Europe as well as the desirability of the proposals outlined by the European Commission. 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, together with the “Roadmap”, on which views are sought, at the European Commission website at: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12592-Enhancing-the-convergence-of-insolvency-laws-.
 
NB. Please note, the roadmap is open for feedback for a limited period (deadline Wednesday 9 December 2020)

A detailed report of the recent online conference 'Towards A New World', written by Paul Omar and Myriam Mailly, can be downloaded here.