2017-07-doc5 Rights and duties of the group coordinator under the EU Insolvency Regulation

Monday 26 June 2017 marks a turning point in the history of European insolvency law. On that date, the majority of the measures in the EU Insolvency Regulation (2015/848, recast) (EIR 2015) will become effective. The original Insolvency Regulation (1346/2000) is repealed, but will continue to apply to insolvency proceedings opened before 26 June.

The EIR 2015 contains a novelty, in that groups of companies are addressed in a new Chapter V with over 20 articles (articles 56 to 78 of the EIR 2015).

The argument for including this set of rules in recital 6 of the EIR 2015 is a bit thin, saying simply that the recast regulation “… should lay down rules on the coordination of insolvency proceedings which relate to the same debtor or to several members of the same group of companies.”

The EIR followed a strict judicial approach in stating that every single member of an entity should be subject to its own insolvency proceedings (“one debtor – one estate – one insolvency proceeding – one court – one group of creditors”).

Under the former regulation, the centre of main interest (COMI) of establishments and subsidiaries in different member states to their holding company, was nearly always viewed to be located in the member state where the proceedings against the holding company were opened, examples being Collins & Aikman, MG Rover and Nortel Networks (in Europe).

Although it introduces the concept of a group proceeding, the EIR 2015 does not dictate an exclusive regime for the insolvency of members of a group. Recital 53 expresses that the new rules “… should not limit the possibility for a court to open insolvency proceedings for several companies belonging to the same group in a single jurisdiction if the court finds that the centre of main interests of those companies is located in a single Member State.”

To understand the new regime, it should be noted that a “group of companies” means a parent undertaking and all its subsidiary undertakings, while “parent undertaking” means an entity that controls, either directly or indirectly, one or more subsidiaries. An undertaking that prepares consolidated financial statements in accordance with Directive 2013/34/EU shall be deemed to be a parent undertaking.

The EIR 2015 provides for an impartial group coordinator, who must have eligibility under the law of a member state to act as an insolvency practitioner.

The aim of group proceedings is to ensure efficiency of coordination between different entities, while at the same time respecting each group member’s separate legal personality (see recital 54 EIR 2015). It should be mentioned, however, that the group coordination system is voluntary and that the impartial group coordinator can suggest non-binding recommendations to the IPs of the individual insolvency proceeding of the members of the group that are pending in different member states. For these reasons, the new set of rules on group insolvency have had a mixed reception in legal literature, with the majority of authors expressing doubts as to their effectiveness and practical value, as well as to the costs the group coordinating proceedings may bring with them and their complex character.

The EIR 2015 stipulates that the coordinator should be free from conflicts of interest, although persons who already are an IP in respect of one of the group members are excluded. Another professional requirement for the coordinator is to fulfil “… his or her duties impartially and with due care”. Based on the IP systems in several EU member states, an IP and therefore the coordinator can be a natural person (as under German or English law) or a legal person (as under Spanish or Hungarian law). In a scenario where there is a parent company in Austria, and group members in France, Italy and two in Spain, the coordinator might therefore very well be someone allowed to act as IP in Sweden or the Netherlands. I note that the EIR 2015 lacks definitions for “impartiality” and “due care”.

Article 72 of the EIR 2015 forms the heart of Chapter V on group insolvency proceedings, which sets out the task, role, rights and duties of the coordinator.

The coordinator shall (a) identify and outline recommendations for the coordinated conduct of the insolvency proceedings, and (b) propose a group coordination plan. The task shall not extend to any member of the group not participating in group coordination proceedings.

In identifying and outlining recommendations for the coordinated conduct of the insolvency proceedings the coordinator, under recital 57, “… should always strive to facilitate the effective administration of the insolvency proceedings of the group members, and to have a generally positive impact for the creditors”.

This means that the recommendations may contain all types of measures that enable the effective administration of the insolvency proceedings of the included group members and have a generally positive impact on the creditors. The group coordination plan may contain measures to re-establish the economic performance and the financial soundness of the group or any part of it, such as the increase of equity capital, simplification of the financial structure of the group, and the elimination of deficiencies in the intra-group cash pooling system. Measures might also aim to improve business performance, including through the reorganisation of the group structure, realignment and refocussing of business activities, replacement of management, and personnel reduction.

Plans may also include solutions to settle intra-group disputes and avoidance actions related to, for instance, intra-group sales on the basis of transfer pricing, performance of services by one group member for another below market price, and gratuitous allocation of means of production and licences. Other plans could see agreements between the IPs of the insolvent group members, for example to settle intra-group disputes, to implement a group coordination plan in the insolvency plans of the individual group members, reconsider the treatment of intra-group contracts, or provide securities.

What is certain is that the group coordination plan may not include recommendations as to any consolidation of proceedings or insolvency estates.

In addition, article 72(2) introduces five rights and tasks with which the coordinator “may” also have.

The coordinator may be heard and may participate in any of the proceedings opened in respect of any member of the group. Participating in a creditors’ meetings of one or more of the individual proceedings, for example, gives the coordinator the opportunity to find out which measures the creditors favour, to test certain ideas or to promote parts of its coordination plan in the making.

The coordinator may also mediate or suggest mediation of any dispute arising between two or more insolvency practitioners of group members. He or she may present and explain the coordination plan to the relevant persons or bodies within insolvency proceedings to which the group members participating in the group coordination are subject. This is important because the coordinator can inform participants of any pros and cons of the plan and what its implementation will mean for the future of the group and its individual members. The overview will set a benchmark for creditors when assessing whether to comply or not with the coordinator’s proposals.

The coordinator may request information from any IP in respect of any member of the group where that might be of use in identifying and outlining strategies and measures to coordinate the proceedings. This should be read in conjunction with the overall duty of the insolvency practitioners to communicate all information that is relevant for the coordinator to perform their tasks. Such information may include: the company’s capital structure; shareholders’ involvement; numbers of employees, their salaries and pension entitlements; accounting reports; inter-company agreements; financial structures, including securities given in bank loans for the obligations of other members in the group; overviews of the status and future of research, development and innovation; and long-term contracts, for example a real estate or fleet lease.

Finally, the group coordinator may request a stay for a period of up to six months of the proceedings opened in respect of any member of the group, if it is necessary to ensure the proper implementation of the plan and would be to the benefit of the creditors in the proceedings.  The stay seems to be the most powerful tool in the hands of the coordinator.

The coordinator does not work pro bono. Interestingly, the EU sets a general European benchmark on his or her fees by providing that the remuneration shall be adequate, proportionate to the tasks fulfilled, and reflect reasonable expenses. The EIR 2015 also includes rules for agreeing the costs of the coordination, and the share of those costs that each group member will bear, as well as a procedure in case the coordinator considers that the fulfilment of his or her tasks requires a significant increase in these costs.

This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication, but here is a link to the full piece, which appeared in May 2017, on GRR’s website at http://globalrestructuringreview.com

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2017-07-doc4 Are Swedish courts following the Durch court’s example?

Last week I blogged that the Dutch courts appeared to be the first court in a EU Member State to disclose that it is open for cross-border communication and cooperation in insolvency cases under the aegis of the EU Insolvency Regulation (recast), see http://bobwessels.nl/2017/07/2017-07-doc3-does-district-court-midden-nederland-lead-the-way/
I stressed the importance of available EU Cross-border Insolvency Court-to-Court Cooperation Principles and Guidelines (also “JudgeCo” Principles and Guidelines), available via http://www.tri-leiden.eu/uploads/files/eu-cross-border-insolvency-court-to-court-cooperation-principlespdf.pdf. However, the Swedish court may even be the first! Early July the Swedish National Courts Administration approached me on the topic and at their request I assisted, referring to the JudgeCo Principles and Guidelines. The spokesperson later did send me the link that contains – she wrote – some short information about the new insolvency EU-regulation, including a link to www.tri-leiden.eu website and the JudgeCo principles and guidelines, see
http://intranatet.dom.se/Malhantering/Konkursarenden/Insolvensforordningen/. It is, however a closed intranet-site, so I can not verify the information. This is a pity, as for instance a court in Poland or in the Netherlands or insolvency practitioners in a case in Sweden, the debtor of which is also subject to parallel insolvency proceedings in Finland, may be in doubt as to which (non-binding) rules Swedish courts may choose to apply in cross-border situations. To be able to anticipate that a court will follow the JudgeCo Principles and Guidelines will enhance (for foreign courts, IPs and creditors) trust and predictability in the Swedish courts in handling these matters and promote efficient and timely action. Evidently, it is a matter for the government of Sweden or its courts respectively to make its support for the use of the JudgeCo Principles and Guidelines public. Some countries (I know of Germany, Spain and Hungary) have translated the JudgeCo Principles and Guidelines, a country to firmly send out a positive message may lead to others to follow, which certainly will mean an important step to establish best practices in the meaning of recital 48 EIR 2015. The Netherlands, (possibly) Sweden, which one is next?

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2017-07-doc3 Does District Court Midden-Nederland lead the way?

District Court Midden-Nederland seems the first court in a EU Member State to disclose that it is open for cross-border communication and cooperation in insolvency cases under the aegis of the EU Insolvency Regulation (recast), see https://www.rechtspraak.nl/English/Pages/International-Insolvency.aspx). The site starts with the following introduction, thereby setting a great example for courts in other Member States to follow:
‘On 26 June 2017 the Insolvency Regulation (recast) (Regulation 2015/848) has entered into force. Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (“EIR”) is repealed. In the Insolvency Regulation (recast) (or “EIR recast”) articles 42 and 43 state that courts and insolvency practitioners shall cooperate with each other. This website provides the means for concrete cross-border cooperation and communication between courts and insolvency practitioners.

In article 42 and 43 of the EIR recast, it is stated that cooperation and communication between courts and between courts and insolvency practitioners shall take place to the extent such cooperation is not incompatible with the rules applicable to the respective proceedings. This means that, whenever a request is made via this website, the court is limited by national legislation, for example, legislation relating to the protection of computerised personal data.

As recital 48 to the EIR recast indicates, communication and cooperation with courts in The Netherlands takes into account best practices for cooperation in cross-border insolvency cases, as set out in principles and guidelines on communication and cooperation adopted by European and international associations active in the area of insolvency law, and in particular the relevant guidelines prepared by UNCITRAL. For the European Union best practices have resulted in EU Cross-border Insolvency Court-to-Court Cooperation Principles and Guidelines (also “JudgeCo” Principles and Guidelines, available via http://www.tri-leiden.eu/uploads/files/eu-cross-border-insolvency-court-to-court-cooperation-principlespdf.pdf.

Other member state’s courts, insolvency practitioners and government organizations dealing with insolvencies can make inquiries on communication and cooperation in insolvency proceedings via: Insolventie.RB-MNL.Utrecht@rechtspraak.nl.’

 

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2017-07-doc2 International jurisdiction for annex and related (to insolvency) actions

The recast European Insolvency Regulation will bring in new jurisdictional provisions for actions that either derive from, or are closely linked to, insolvency proceedings in the EU. Bob Wessels, professor emeritus of international insolvency law at Leiden University and expert counsel on restructuring and insolvency to the European Commission, welcomes the changes and discusses how they can be further improved.
Readers of the Europe column in GRR will be aware that on 26 June 2017 the EU Insolvency Regulation Recast (EIR 2015) will come into effect. It introduces some innovations, a few of which I have discussed in past editions. The most-anticipated is the solid rule of international jurisdiction for the opening of insolvency proceedings: that goes to the courts of the member state where the debtor has its centre of main interest (COMI), which shall be the place where the debtor conducts the administration of its interests on a regular basis, and which is ascertainable by third parties, now laid down in Article 3(1) EIR 2015.
Since 2002, when the original Insolvency Regulation came into force, COMI and all the words used in the definition to establish COMI have been litigated. In my private collection of EIR cases some 300(!) are COMI matters.
Now one of the novelties is that courts of the member state within the territory of which insolvency proceedings have been opened, shall also have jurisdiction for legal actions that derive directly from those insolvency proceedings and are “closely linked” with them. Recital 35 to the EIR 2015 provides that such actions “… should include avoidance actions against defendants in other member states and actions concerning obligations that arise in the course of the insolvency proceedings, such as advance payment for costs of the proceedings”. I will call these “annex actions”. International jurisdiction for annex actions is provided for in a new Article 6(1) EIR 2015.
Actions “… related to another action based on general civil and commercial law”, recital 35 continues, can, as an alternative, be brought in the courts of the defendant’s domicile if the insolvency practitioner considers it more efficient to bring the action in that forum. I will call these “related actions”. An example is the case where the insolvency practitioner wishes to combine an action for director’s liability on the basis of local insolvency law with an action based on company law or general tort law. International jurisdiction for these related actions is provided for in a new Article 6(2) EIR 2015. I will take a closer look at these provisions.
Annex actions
Article 6(1) EIR 2015 can be regarded as a response to national reports, which, having reviewed the application of the former EU Insolvency Regulation over more than 10 years, highlighted the necessity to have clear grounds regarding international jurisdiction of annex actions in the new regulation.
In effect, Article 6(1) EIR 2015 codifies the existing case law of the Court of Justice of the EU. The most well-known example is the 2009 case Seagon v Deko Marty Belgium, which concerns the following: on 14 March 2002, Frick Teppichboden Süpermarkte GmbH, which has its registered seat in Germany, transferred €50,000 to an account with KBC Bank in Düsseldorf in the name of Deko Marty Belgium NV, a company with its seat in Belgium. Pursuant to an application made by Frick the following day, the Local Court in Marburg, Germany, opened insolvency proceedings on 1 June 2002 in respect of Frick’s assets.
By application to the Regional Court in Marburg, Mr Seagon, in his capacity as liquidator in respect of Frick’s assets, requested that court to set a transaction aside by virtue of the debtor’s insolvency, and to order Deko to repay the money. The court dismissed the liquidator’s application on the ground that it did not have international jurisdiction to hear and determine the case. Since the appeal brought by Mr Seagon also was dismissed, the case went to the European Court of Justice (the ECJ, as it was called until the end of 2009).
The ECJ observed that it was clear the action to set aside a transaction (undertaken before the insolvency proceedings were opened and detrimental to the creditors) was governed by German insolvency law, which states that only the liquidator may bring such an action in the event of insolvency with the sole purpose of protecting the interests of the general body of creditors. The action to set aside a transaction at issue in the main insolvency proceedings was therefore intended to increase the assets of the undertaking in insolvency proceedings.
The ECJ then, based on several arguments, decided that it was appropriate to examine whether these actions to set aside a transaction were included within the scope of the Insolvency Regulation. Based on the intention of the legislature and the need for effectiveness of the regulation, the ECJ decided that Article 3(1) of the EIR, providing international jurisdiction for the courts of a member state to open insolvency proceedings on the basis of the debtor’s COMI “… must be interpreted as meaning that it also contributes international jurisdiction on the member state within the territory of which insolvency proceedings were opened in order to hear and determine actions which derive directly from those proceedings and which are closely connected to them.”
In summary, the ECJ ruled that Article 3(1) must be interpreted as meaning that the courts of the member state within the territory of which insolvency proceedings have been opened have jurisdiction to decide an action to set a transaction aside, which is brought against a person whose registered office is in another member state by virtue of insolvency law.
After the determination of a debtor’s COMI, the second most contested group of cases has been the matter of international jurisdiction of annex actions, notably avoidance actions.
It is now confirmed in Article 6(1) EIR 2015 that if an action can be characterised as an action that derives directly from the insolvency proceedings and is closely linked with them, international jurisdiction is conferred to the courts of the member state where insolvency proceedings have been opened.
What is still undecided is whether this court has exclusive jurisdiction?
There are a few cases with different outcomes. The Amsterdam Court of Appeal in November 2009 in Groet Houdersmaatschappij BV/ Gold-Zack AG, decided it had exclusive jurisdiction as the opening court, and that there is no room, based on the common law of international jurisdiction, for the court of the statutory seat of the defendant, for instance. In a German case, a similar judgment followed: but remarkably the District Court of Amsterdam on 26 September 2012, denied exclusivity.
Literature is vast on the issue of exclusive or elective (or: optional, facultative or competing) jurisdiction. A majority follows the theory of exclusive jurisdiction, primarily based on the following arguments: (i) an elective or optional jurisdiction for another court might result in a contradiction in the interplay between the respective action and the insolvency liability regime, significantly improving procedural economy in the case that the insolvency practitioner (IP) is acting as defendant; (ii) it saves the IP the burden of going to a foreign court, including saving associated costs and time; and (iii) a positive outcome of an annex action proceeding benefits from the system of recognition and enforcement (now) laid down in Article 32 EIR 2015.
I also would see as a general advantage that the COMI-decision and the annex action decision fall under the same set of rules of applicable law, the lex fori concursus. Article 6(1) EIR 2015 follows this conclusion: the courts of the member state where the insolvency proceeding has been opened “shall” have jurisdiction, whether the IP acts as a plaintiff and when he is called as a defendant.
Recently, the benefits of exclusively have been rejected by University of Hamburg professor Wolf-Georg Ringe (see citation below) putting forward two main arguments: (i) exclusive jurisdiction limits the choices of the insolvency practitioner unduly, and (ii) the theory runs counter to the objective of Article 6(1), to improve the efficiency of insolvency proceedings. As so often with these cases, we’ll have to wait for the Court of Justice of the EU to decide on the matter.
Related actions
As to what I have called “related actions”, a new Article 6(2) EIR 2015 provides international jurisdiction for these type of actions, that is to say, legal actions that derive directly from the insolvency proceedings and are closely linked with them (in the meaning of Article 6(1)), where they are “… related to an action in civil and commercial matters against the same defendant”.
In such a case the IP has a choice. He “… may bring both actions before the courts of the member state within the territory of which the defendant is domiciled, or, where the action is brought against several defendants, before the courts of the member state within the territory of which any of them is domiciled, provided that those courts have jurisdiction pursuant to Regulation (EU) No 1215/2012”. This is a reference to what is known as the Brussels I regulation. Therefore, in case of a related action the IP has a choice where to file his claim: the COMI court, or the courts in the member state where the defendant is domiciled. Which court that is, will be determined by national law.
In the case of several defendants – two or more with different domiciles – the IP has a right to bundle jurisdiction and bring the action before the courts of the member state within the territory of which any of the defendants is domiciled.
Article 6(3) EIR 2015, finally, presumes that for the purpose of Article 6(2) actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
Efficiency, clarity and preventing loss of time and costs seem good reasons for the provisions discussed and they should be welcomed. On a “wish-for-the future” list we can place a list of examples of annex actions, a decision regarding the matter of exclusivity, and a more specified meaning of “so closely connected” in Article 6(3).

Further reading
Georg Ringe in Reinhard Bork and Kristin van Zwieten (eds.), Commentary on the European Insolvency Regulation, Oxford University Press, (2016), 6.37ff.
Case references
Seagon v Deko Marty Belgium, European Court of Justice, 12 February 2009, Case C-339/07, ECLI:EU:C:2009:83
Groet Houdersmaatschappij B.V./Gold-Zack AG, Court of Appeal Amsterdam, 3 November 2009, ECLI:NL:GHAMS:2009:BL8405
District Court of Amsterdam, 26 September 2012, ECLI:NL:RBAMS:2012:BY1621

This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication, but here is a link to the full piece, which appeared in April 2017, on GRR’s website at http://globalrestructuringreview.com/

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2017-07-doc1 Website for European Civil Procedure

http://sites.unimi.it/EUCivilProcedure/ is a new website for European Civil Procedure. It has been set up within the Jean Monnet Module on European Civil Procedure in a Comparative and Transnational Perspective, a teaching and research project funded by the EU and hosted by Università degli Studi in Milan. Its scientific coordinator is prof. Albert Henke and its goal is to practitioners, academics, students and all those involved in cross-border litigation in Europe updated about current trends and recent developments in legislation, case law and literature in this area. For me it is important as it also covers insolvency procedural law. The website furthermore wnats to create an open educational resource and possibly promote scientific partnerships among Universities, Centres of Research and Institutions active in the field. The website is still under construction.

http://sites.unimi.it/EUCivilProcedure/

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2017-06-doc11 Algemene voorwaarden in Dordrecht

Van het lijvige boek Wessels/Jongeneel (red.), Algemene voorwaarden, verscheen onlangs de zesde druk. Zie voor een korte beschrijving van de inhoud van het bijna 900 pagina’s tellende boek http://bobwessels.nl/2017/04/2017-04-doc8-zesde-druk-boek-algemene-voorwaarden-verschenen/;  voor bestellingen, ga naar https://www.wolterskluwer.nl/shop/boek/algemene-voorwaarden/NPALGVRWA/. Han Jongeneel (al jaren rechter in Amsterdam; links) en ik hebben de nieuwe druk bescheiden gevierd, met enkele versnaperingenDSC00931 bij Villa Augustus in Dordrecht.

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2017-06-doc10 Here I am: EU Insolvency Regulation (Recast)

Yesterday, 26 June 2017, renewed rules regarding cross-border insolvency in the EU came into legal effect, see the EU Insolvency Regulation recast, with its legal source mentioned in the European Commission’s press release, go to http://europa.eu/rapid/press-release_IP-17-1743_en.htm. This does not mention that last week a regulation has been published with several standard forms accompanying the realisation of the Insolvency Regulation (Recast), see http://bobwessels.nl/2017/06/2017-06-doc8-standard-forms-for-use-under-the-eir-recast/. Yesterday too, the Netherlands Association of Comparative and International Insolvency Law (www.naciil.eu) celebrated the coming to life of the Regulation (and the decease of the initial Insolvency Regulation 1346/2000) with an afternoon seminar in Rotterdam, in the famous Schielandshuis, originally the location of – we’re in Holland – the polder district board, erected around 1665, now a museum, with as speakers (see below, pictured from left to right): Ruben Leeuwenburgh (Windt Le Grand Leeuwenburg, Rotterdam), me (myself, Dordrecht), professor Michael Veder (Chair NACIIL, Univ Nijmegen; RESOR Amsterdam) and Michael Broeders (Freshfields, Amsterdam).

DSC00935

 

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2017-06-doc9 Increased attention for ALI-III Global Principles for Cooperation of 2012

Last Monday the Board of Directors of the International Insolvency Institute (III) decided to republish and redistribute the American Law Institute-International Insolvency Institute (ALI-III) Global Principles for Cooperation in International Insolvency Cases, incorporating Global Guidelines for Court-to-Court Communications in International Insolvency Cases, originally adopted in 2012. Recent developments in the regulation of cross-border court-to-court cooperation in insolvency and restructuring cases (see my blog http://leidenlawblog.nl/articles/jin-guidelines-strengthen-court-to-court-cross-border-cooperation) might have caused confusion about the set of available tools for courts in international cases. As a background: in Spring 2017 the JIN Guidelines were produced (‘Judicial Insolvency Network Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters, see http://www.supremecourt.gov.sg/docs/default-source/module-document/registrarcircular/rc-1-2017—issuance-of-guidelines-for-communication-and-coorporation-between-courts-in-cross-border-insolvency-matters-.pdf). According to Justice Kannan Ramesh (Supreme Court of Singapore) the JIN Guidelies have been approved (as per June 2017) by seven ‘common law’ courts, including the US Bankruptcy Court for the District of Delaware, the Commercial Court of Bermuda, the US Bankruptcy Court for the Southern District of New York and the Chancery Division of the High Court of England and Wales. The territorial reach of the JIN Guidelines is limited to some 10 jurisdictions. For use on a global scale, in 2012 the ALI-III Global Guidelines for Court-to-Court Communications in International Insolvency Cases were published (for the text see https://www.iiiglobal.org/sites/default/files/alireportmarch_0.pdf). The ALI-III Global Principles and Guidelines together subsequently formed a solid basis for a set of tailored principles, published in 2015, for use under the regime of the EU Insolvency Regulation (recast), which shall apply to insolvency proceedings opened from 26 June 2017. See for these EU Cross-Border Insolvency Court-to-Court Cooperation Principles and Guidelines (also known as JudgeCo Principles and Guidelines) http://www.tri-leiden.eu/project/categories/eu-judgeco-project/.
As authors of the ALI-III Global Principles of 2012, professor Ian Fletcher and I recommend them for use in other regions or by other states as well, and in this context we welcome the decision of the Board of Directors of III, which was discussed 19 June 2017 during the 17th Annual Conference of III held in London. An additional reason for III to highten the awareness of the ALI-III Global Principles and Guidelines of 2012 lies in the furthering of European rules for general civil procedure. The European Law Institute cooperates with UNIDROIT (The International Institute for the Unification of Private Law) in an attempt to create European Rules of Civil Procedure. The ELI-UNIDROIT project builds upon an instrument produced jointly by the ALI and UNIDROIT, its Principles of Transnational Civil Procedure of 2006, and aims at the regional development of those Principles. In our ALI-III Global Principles 2012 Report, Fletcher and I in several instances took inspiration from these ALI-UNIDROIT Principles. A wider familiarity with the ALI-III Global Principles and Guidelines 2012 may therefore support convergence between procedural matters in civil proceedings and insolvency proceedings respectively. On a personal note: the principal author of the ALI-UNIDROIT Principles is Geoffrey Hazard (prof. em. Univ. of Pennsylvania School of Law), who in 2005 asked me to become a member of ALI, and to serve as co-author of what has resulted in the ALI-III Global Guidelines of 2012.

Pictured below, from left to right, members of the Board of Directors of III: Thomas Felsberg (Brazil), Don Bernstein (USA, former President III), Hon. James Peck (USA, President III), prof. Ian Fletcher (UK), me, prof. Christoph Paulus (Germany) and Alan Bloom (UK, incoming President III) DSC00928 - kopie

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2017-06-doc8 Standard forms for use under the EIR Recast

OJ L 160/1 of 22 June 2017 publishes the European Commission’s regulation ‘… to ensure uniform conditions for implementing Regulation (EU) 2015/848’, with several forms. The regulation contains 4 of these forms: (i) the standard notice form to be used to inform known foreign creditors of the opening of insolvency proceedings (Art. 54(3) EIR 2015), (ii) the standard claims form which may be used by foreign creditors for the lodgement of claims (Art. 55(1)), (iii) the standard form which may be used by insolvency practitioners appointed in respect of group members for the lodgement of objections in group coordination proceedings (Art. 64(2)) and (iv) the standard form to be used for the electronic submission of individual requests for information via the European e-Justice Portal (see Art. 27(4)), see
http://eur-lex.europa.eu/legal-content/NL/TXT/?uri=uriserv%3AOJ.L_.2017.160.01.0001.01.NLD&toc=OJ%3AL%3A2017%3A160%3ATOC

For those understanding Dutch, please join the celebration festivities for the new Regulation on Monday 26 June in Rotterdam, in the second half of the afternoon, organised by the Netherlands Association of Comparative and International Insolvency Law (NACIIL), see http://www.nvrii.nl/activiteiten/nieuws/viering-inwerkingtreding-herschikking-insolventieverordening-26-juni-2017/

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2017-06-doc7 III NextGen Leadership Conference London

The Impact of Brexit on Restructurings in England was the theme of an imaginative discussion between four talented lawyers, which I chaired, during the International Insolvency Institute NextGen Leadership Conference in London, Sunday 18 June 2017. Themes discussed: solutions based on English law, Great Repeal Bill, cross-border effects of schemes of arrangements, impact of Brexit on Insolvency Regulation and Brussels I Regulation and consequences for England as a restructuring hub. Queries? Feel free to approach (standing left from me): James Falconer (Counsel Skadden Arps London), Patrick Ehret (Partner Schulze & Braun, Aachern, Germany) (and on my right side) Mark Craggs (Patner Norton Rose Fulbright, London) and Ivo-Meinert Willrodt (Partner, Pluta, Munich). DSC00919 - kopie - kopie

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