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.

The European Bank for Reconstruction and Development (EBRD) Assessment has launched on 1st September 2020 an Insolvency Assessment on Business Reorganisation.

The Assessment aims to provide detailed guidance on legislative gaps to address an expected increase in businesses needing to use formal restructuring procedures following the coronavirus pandemic.
 
Structured as a questionnaire, the assessment will provide an up-to-date map of restructuring frameworks across the EBRD regions in Europe, Asia and Africa. It aims to provide an overview of the options within pre-insolvency and insolvency frameworks across the economies where the EBRD engages, but, for benchmarking purposes, the consultation is also open to countries where the EBRD does not at present invest.
 
The results of the assessment as well as a report summarising its findings will be made publicly available online and will also be published in due course on the INSOL Europe website.

The survey is available in English, French and Russian and will be open for public consultation until 31 October 2020. The press release is accessible here.

We encourage all INSOL Europe members to participate to the EBRD Assessment given the fact that the EBRD has decided to extend the scope of the questionnaire also to EU non-EBRD countries.

Make your voice heard!

A tracker of insolvency reforms globally produced by Lexis Nexis in partnership with INSOL Europe is now available here.

Plus:
The CERIL Executive has published a Statement on COVID-19 and insolvency legislation here. [Read more]