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Brussels – Heatwaves and Hot Topics
Late June saw the annual outing by the Deutscher Anwaltverein (DAV) in Brussels at their 8th European Insolvency and Restructuring Congress, co-sponsored for the second year running by INSOL Europe. Paul Omar reports for INSOL Europe.

Thursday 27 and Friday 28 coincided with a Europe-wide heatwave, sending temperatures soaring into the high 30s and low 40s. In Belgium, the airconditioned confines of the Stanhope Hotel helped keep the 80 speakers and delegates cool, though the items on the agenda were just as hot as the external temperature, the two key items on the programme being the recently adopted Preventive Restructuring Directive (2019/1023) (PRD) and the almost eternal question of Brexit.

Leading off the debate on the PRD, outgoing EU Commissioner Vera Jourova thought the text a singular achievement with a coordinated European approach being all the more necessary in the face of US and Chinese aggressive behaviour on the markets. Though full harmonisation is unlikely to be achievable, the Commissioner thought that Member States still needed to review the stigmatising focus of traditional European approaches. Joining in on the future of European initiatives in insolvency, Salla Saastamoinen (DG Justice) brought attention to the influence of the EU on the work of UNCITRAL in the field of conflict of laws, perhaps even leading to a recommendation to Member States to adopt the Model Law.

The focus of the morning panel was on how Member States should approach the process of adopting the PRD, Commissioner Jourova having warned against gold-plating the text to avoid complicating the simplicity of the text and its purpose. Salla Saastamoinen suggested that the main result of the PRD being adopted was to offer Member States a further tool for the toolkit, one that should prove useful. Members of the panel also contributed views on how French law will adapt to the PRD and how Denmark will fare as an outsider to these initiatives.

The Thursday afternoon workshops divided the delegates up into two groups, one hearing practical experiences with the Recast European Insolvency Regulation, the other focusing on the thorny issue of Brexit and its impact on cross-border restructurings. In the Brexit workshop, Andrew Shore (UK Insolvency Service) outlined some of the challenges facing the country with not only Brexit and possibly adapting to the loss of one of the many cross-border regimes, but also due to changes being signalled to domestic law. Key issues for the Government are how to continue to promote rescue of business and employment, while reducing the risk to efficiency of cross-border instances. Members of the panel helped illustrate this by analysing the Gibbsrule and the impact on selected industries in the absence of a dedicated framework for cross-border restructurings with Europe.
Friday dawned equally hot on the temperature plan, while news came in that the UK Supreme Court had declined leave to appeal in Gibbs, thus preserving the effect of the rule, absent any legislative intervention. Summaries of the workshops were delivered to conference before the morning panel embarked on an exploration of how the PRD will be implemented across Europe. Members of the panel contributed comparisons between existing pre-insolvency procedures in selected European jurisdictions, with a particular focus on the position in the Netherlands, Spain and Germany, where Ben Dany (German Ministry of Justice) informed the audience a new minister had just taken up the portfolio and would be determining the timeline for the implementation process once the transposition period begins in late July.
Wrapping up the morning, Lucas Kortmann (Resor) delivered his annual summary of the caselaw of the Court of Justice, looking at the recent cases on scope: Wiemer und Trachte (14 November 2018), NK/Fortis(6 February 2019); TUPE: Plessers(16 May 2019) and a curiosity in the area of clawback: Feniks/Azteca (4 October 2018), which has excited some debate. This was followed by the final panel involving a novel approach to looking at the international insolvency framework through the eyes of the stakeholders, using a number of arresting visuals to illustrate the diversity of potential players and views, all of which have an impact on the outcomes of any restructuring process. A roundup of practice changes that may occur after Brexit saw Jennifer Marshall (Allen and Overy) deliver a talk on the changing identities and roles of lenders and other financing bodies with increasingly complex financial structures continuing to pose essential questions on governing laws, especially the choice of restructure jurisdictions to have the benefit of cram-down and recognition in all affected jurisdictions. With a short envoi from conference chairs, the Brussels event then came to a close.

Photos by Andreas Burkhardt