2017-04-doc9 European Supervisory Authorities (ESAs) evaluated

The development in Europe to integrated financial markets has brought significant achievements. To promote financial integration and market integrity while safeguarding financial stability, some six years ago within the EU internal market for financial services the EU is working on common rules and strong supervisory coordination. It introduced a Single Rulebook for financial regulation in Europe and created the European Supervisory Authorities (ESAs). These are the European Banking Authority (EBA, in London (still))), the European Insurance and Occupational Pensions Authority (EIOPA, Frankfurt) and the European Securities and Markets Authority (ESMA, Paris). These ESAs function as a cornerstone of the reforms put in place in the wake of the financial crisis. Since their establishment, the ESAs have contributed to the building of the Single Rulebook for financial services (banking, insurance and capital markets) and to the convergence of supervisory practices, in order to ensure a robust financial framework for the Single Market and to underpin the creation of the Banking Union. Presently the European Commission is evaluating this system, particularly by identifying areas where the effectiveness and efficiency of the ESAs can be strengthened and improved. Recently the Commission launched a public consultation on the operation of the ESAs with a twofold purpose: (i) to gather evidence on the operations of the ESAs to evaluate their operations and to see whether they are delivering as expected considering their objectives to protect the public interest by contributing to the short, medium and long-term stability and effectiveness of the financial system, and (ii) to build a clearer overview of areas where going forward the effectiveness and efficiency of the ESAs can be strengthened and improved. Anything on your mind? Contributions can be submitted until 16 May 2017. For the link to the consultation, see https://ec.europa.eu/info/finance-consultations-2017-esas-operations_en

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2017-04-doc8 Zesde druk boek Algemene voorwaarden verschenen

Het boek ‘Algemene voorwaarden’, dat vandaag verschijnt, is uitgegroeid tot het meest omvattende werk over algemene voorwaarden in Nederland. De eerste druk dateert van dertig jaar geleden (!); de huidige zesde druk is qua omvang meer dan vijf keer zo omvangrijk (ruim 900 pagina’s), maar dat komt natuurlijk ook omdat een tiental auteurs branche-specifieke bijdragen hebben geschreven, bijvoorbeeld over algemene voorwaarden in de huursector, energielevering, automatisering, verzekering en over de algemene bankvoorwaarden 2017. Voor het eerst is in deze druk een hoofdstuk opgenomen over algemene voorwaarden bij online contracteren met consumenten. Uiteraard is deze zesde druk aangepast aan de ontwikkelingen in literatuur en rechtspraak, met aandacht voor de Richtlijn oneerlijke bedingen (Richtlijn 93/13 EEG) en de toepassing daarvan in de rechtspraak van het Hof van Justitie van de Europese Unie. Zie nader B.Wessels en R.H.C. Jongeneel (red.), Algemene Voorwaarden, Wolters Kluwer, 6e druk, 2017 https://www.wolterskluwer.nl/shop/boek/algemene-voorwaarden/NPALGVRWA-BI16001/#auteurs

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2017-04-doc7 Book announcement of Braun’s 7th ed.

Germany is one of Europe’s lager countries where restructuring and insolvency law has changed dramatically over the last decade. The book of Eberhard Braun, InsO – Insolvenzordung, 7th ed., C.H. Beck, 2017, 2060 pp. (ISBN 978-3-406-69675-6), known as ‘the Braun’, reflects these recent changes. It provides an article-by-article commentary on the German Insolvenzordnung, with in addition a commentary on the revision of the EU Insolvency Regulation. It also includes a concise and compact treatment of Germany’s new (domestic) group insolvency law (the final version has been presented last March) and a commentary on its proposed rules on transaction avoidance.
Some thirty authors have contributed to the book, all being active as lawyers or financial consultants, which results in a clear orientation to the needs of practice, and the explanations given many times are the result of their rich experiences. The users of the book will be, I gather, primarily insolvency practitioners and attorneys. Having glanced through the commentary on the Insolvency Regulation recast (Reg. 2015/848) of around 250 pages, this orientation has its pros and cons. References to ‘foreign’, non-German literature are near to absent (except for the Bork/Mangano book). That’s a pity as in cross-border cases other, non-domestic literature might present arguments in favor of the interests of a client or a party in litigation. On the other hand, the authors have several times referred to court cases (probably based on their own experiences) from for instance Spain, Poland and Bulgaria, to present ‘non-German’ views. A strength of the book is that several commentaries at the end provide for ‘practical hints and tips’.
In the treatment of the new rules for insolvency registers the following caught my eye. Recital 76 provides: ‘In order to improve the provision of information to relevant creditors and courts and to prevent the opening of parallel insolvency proceedings, Member States should be required to publish relevant information in cross-border insolvency cases [my italics] in a publicly accessible electronic register. In order to facilitate access to that information for creditors and courts domiciled or located in other Member States, this Regulation should provide for the interconnection of such insolvency registers via the European e-Justice’. Which information must be published? The chosen wording regarding the information to be published (see my italics), and what this information specifically needs to contain (e.g. Article 24(2)(d) says: ‘… whether jurisdiction for opening proceedings is based on Article 3(1), 3(2) or 3(4)’), as well as the goal of providing this information (in recital 76: ‘In order to facilitate access to that information for creditors and courts domiciled or located in other Member States … ’) seems to indicate that only those proceedings mentioned in Annex A (compare Article 24(2)(c)) will be taken into the register that indeed have extra-territorial effect. This reading would necessitate to make a selection between ‘cross-border’ cases and pure domestic cases. If this would be possible at all – cross-border effects may only come to the surface some time after the opening of proceedings – and if it would be clear who has to make this selection (the ‘Member State’, or an agency on its behalf, the court, the insolvency practitioner, ‘if any’ (see Article 24(2)(g))?), such a limitation is difficult to align with the general goal of enhancing the effectiveness on collective insolvency proceedings and the effet utile of EU law. See in this way too Dugué (Art. 28, nr. 20), submitting that national legislators should oblige ‘courts’ to supply the register with information (unless it is clearly a domestic case). I wonder whether the better solution should be a technology driven one: all cases in the register, which is, if I am correct, the present practice in the system of the European e-Justice Portal.
On groups of companies, initially, under the former Insolvency Regulation, matters of insolvency for groups of companies had been deliberately left out. Under the present regulation, they form a large part of the new provisions, commented and discussed by Tschentscher, Esser and Cülter. Article 56(2) provides that, in implementing the cooperation and communication between the insolvency practitioners (IPs), these IPs ‘shall’ a soon as possible cooperate and communicate etc. The character of this ‘duty’ is discussed. Tschentscher (Art. 56, nr. 14) submits that its character is an ‘Obliegenheit’, which is an ‘obligation’ that only comes to live when it its triggered by the addressee of it. The result would be that the duty to inform only exists in case the insolvency practitioner in a foreign proceeding requires certain information. The text in different language versions is rather unclear (English: shall; German: ‘obliegt’; Dutch: insolventiefunctionarissen ‘gaan … als volgt te werk’; French: ‘[D]ans le cadre de la mise en oevre …’). Given the goal of ensuring the efficient administration of insolvency proceedings relating to different companies forming part of a group (recital 51) as well as the words ‘as soon as possible’ in Article 56(2)(a) I would expect IPs to be more active and start communication on their own initiative. At another place in the commentary Tschentscher (Art. 60, nr. 24), indeed seems to support the view that in practice IPs should inform each other on their own initiative. In practice, on a case-by-case basis, it will many times be clear which of the IPs is or should be in the lead (e.g. in considering and proposing a restructuring plan), although it should be noted that there is no such thing as a ‘dominant’ proceeding (known from the interrelationship between ‘main’ and ‘secondary’ insolvency proceedings, see recital 48), as in the context of coordinating the members of a group all pending insolvency proceedings related to these members function on the same footing.
In the case that the court is satisfied that the three requirements as expressed in Article 63(1) are met (opening of group coordination proceedings is approapriate, no creditor financially disadvantaged; the coordinator fulfils professional requirements), it must notify the other IPs and it will hear them. Article 63(2)-(4) provide the rules on timing, form etc. of this notification. The court seised shall give the insolvency practitioners involved the opportunity to be heard. See Article 63(4). In such a case these IPs can bring any relevant aspects regarding the fulfilment of the requirements and any potential objections to the attention of the court before it decides on whether to send the notice. Esser (Art. 63, nr. 28), submits that Article 64 (‘Objection by insolvency practitioners’) allows the IPs to bring forward objections, and that for this reason the hearing in the meaning of Article 63(4) does not seem necessary. I do not think that this is correct. Not only are the objections, provided for in Article 64 limited, to have a court decide on a certain matter without a hearing could easily contracdict the principle of equility of arms. Aforementioned right to object is limited to two situations, see Article 64(1)(a) and (b) (inclusion within group coordination proceedings; prior authorisation to the objection). Article 64(1) seems to limit the subject of the objections to the two given examples. What if the IP wishes to protest against the outline of the estimated costs and the share of the cost to be paid by each group member (see Article 61(3)(d))? Esser (Art. 64, nr. 6) submits that such objections should be allowed. In the light of the efficiency strived for I would support the view to limit the objections to the two mentioned in Article 64(1)(a) and (b). The regulation should not serve as an invitation to litigate.
In closing, I refer to the ‘outsider’ in the insolvency arena, Articles 78 – 83, on privacy and data protection law, with a clear comment by Becker.
The new Braun is, in all, a very timely and relevant book, that helps practitioners to understand better (EU cross-border) insolvency law and assists in overcoming the obstacles that this area so often presents.

Prof. Dr. Bob Wessels
Prof. em. international insolvency law
University of Leiden, The Netherlands
April 2017, accessible via www.bobwessels.nl (go to blog, 2017-04-doc7)

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2017-04-doc06 EIR 2015 and Memo08 – The group coordinator

My blog at 2017-04-doc4 sought input on the twisted legal figure of an ‘undertaking’ in the new EU Insolvency Regualtion. As announced it served as my second-to-last invitation to contribute to the development of the 4th edition of my book Wessels International Insolvency Law: Part II European Insolvency Law. As I am nearing the finish and nearly ready to send in my manuscript to the publisher, Wolters Kluwer, enclosed my last memo, memo08, with some interesting points concerning the group coordinator. On the basis of Article 71(1) EIR 2015 the coordinator shall be a person eligible under the law of a Member State to act as an insolvency practitioner, he shall have no conflict of interests and he shall perform his duties ‘impartially’ and ‘with due care’ (Article 72(5)). Those interested, also regarding other memo’s on topics concerning the EIR 2015, now is the time to provide me with sources of literature, precedents, court cases or additional comments. Memo08 Please send your reaction before 1 May 2017 via info@bobwessels.nl. Looking forward to hear from you, and for those who have showed interest in whatever way the last 3 months (around 30 all over the world), thank you for your reactions!

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2017-04-doc5 First lustrum of Hazelhoff Centre for Financial Law

The Hazelhoff Centre for Financial Law at Leiden University celebrates its 5th anniversary, with an international conference on ‘Public and private regulation of financial markets’. The main theme of the conference is the interaction between public and private regulation, as well as between EU law and national law. Also, significant attention will be paid to the ethics of banking. Leading experts will contribute, such as Frank Elderson (Executive Director at the Dutch Central Bank), prof. Matthias Lehmann (Director of the Institute for International Private and Comparative Law at the University of Bonn), prof. Jens-Hinrich Binder (Professor of Private Law, Commercial and Corporate Law at the University of Tübingen), Rego Boer (Policy advisor and senior legislative lawyer at the Dutch Ministry of Finance), prof. Femke de Vries (Board Member of the Dutch Authority for the Financial Markets; professor of Regulatory Enforcement, University of Groningen), Eveline Ruinaard (Chairperson of the Dutch Institute for Financial Disputes), and professors Matthias Haentjens, Pim Rank and Rogier Raas, the leadership of the Hazelhoff Centre. The conference aims to bring together legal practitioners, academics and students, to exchange thoughts and opinions with regard to the most pressing problems that today’s financial markets face: how will recent European rules on bank resolution affect the position of creditors? How may Dutch private law affect the coming recast of the Dutch Financial Supervision Act? And, should financial supervisors have the power to engage in both public and private enforcement? Date: Thursday 11 May 2017, 09.30 – 16.00; location: Stibbe, Beethovenplein 10, 1077 WM Amsterdam. For more information, see http://www.leidenlawconference.nl/8-conferences/16-lustrumcongres-hazelhoff-centre

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2017-04-doc4 EIR 2015 and Memo07 – The undertaking

A deliberative public participatory drafting process. Curious what it is? It’s my invitation to contribute with providing sources or comments to the development of the 4th edition of my book Wessels International Insolvency Law: Part II European Insolvency Law. See for what it entails http://bobwessels.nl/2017/01/2017-01-doc13-wessels-intl-insolvency-law-part-ii-lets-go/. This process started in January. As I am nearing the final stage of my writing and editing of the full text of the book, this is my second-to-last invitation to contribute. This time it concerns the magic concept of ‘a unilateral undertaking’ (Dutch: ‘de unilaterale toezegging‘; German: ‘eine einseitige Zusicherung‘; French: ‘un engagement unilatérale‘) in the meaning of Article 36 EIR 2015. This article contains 11 paragraphs and the attached Memo07 only concerns Article 36(1) (already over 3500 words in my draft). Those interested also on other topics regarding the EIR 2015 to provide me with sources of literature, precedents, court cases or additional comments to the attached draft please inform me before 1 May 2017 via info@bobwessels.nl). Memo07

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2014-04-doc3 In EU, after Brexit, English remains preferred language

The EU Commission announced that finally an agreement has been reached to adopt English as the preferred language for European communications, rather than German, which was the other possibility. As part of the final negotiations, however, some room for improvement has been detected and the Commission has accepted a five-year phased plan for what will be known as Euro-English. In the first year, ‘s’ will be used instead of the soft ‘c’. Sertainly, sivil servants will resieve this news with joy. Also, the hard ‘c’ will be replaced with ‘k’. Not only will this klear up konfusion, but insolvensy kourts and kross-border bankruptsy koordinators will welkome this, whilst a laptop kan have one less letter. There will be growing publik enthusiasm in the sekond year, when the troublesome ‘ph’ will be replaced by ‘f’. This will make words like ‘fone’, paragraf’, and fysikal location of an asset 10 20 per sent shorter.
In the third year, publik akseptanse of the new spelling kan be expekted to reach the stage where more komplikated changes are possible. Post-Brexit member states will enkourage the removal of double letters, which have always ben a deterent to akurate speling. Also, al will agree that the horible mes of silent ‘e’s in the language is disgrasful, and they would go. By the forth yer, peopl wil be reseptiv to steps such as replasing ‘th’ by ‘z’ and ‘w’ by ‘v’. During ze fifz yer, ze unesesary ‘o’ kan be dropd from vords kontaining ‘ou’ and similar changes, like kurt and amunt vud of kors be aplid to ozer kombinations of leters. After zis fifz yer, ve vil hav a reli ensibl riten styl. Zer vil be no mor trubls or difikultis and evrivun vil find it ezi tu understand ech ozer. Ze drem vil finali kum tru.

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2017-04-doc2 Insolvency prodeedings, arbitration and pending lawsuits

Article 18 Insolvency Regulation (recast) differs in two aspects from the text in its near equivalent in Article 15 of the Insolvency Regulation 2000. Although it has been reported that in Member States ‘… no serious problems’ have been raised in the context of Article 15 EIR 2000, and there would be no urgent need in this respect to amend Article 15 EIR 2000, it has been submitted that it would be rather easy and advisable to ‘… simply add the words ‘or an arbitration proceedings’ to the article’, see Pfeiffer, in: Heidelberg-Luxembourg-Vienna Report (2013), nr. 856. It flows from the attached draft commentary that the characterisation ‘no serious problems’ is a rather innocent view of some fifteen years of development. Memo06 This Memo06 on the effects of insolvency proceedings on pending lawsuits or arbitral proceedings serves as an invitation, as expressed on my blog www.bobwessels.nl, go to 2017-01-doc13, to participate in developing my book International Insolvency Law, Part II European Insolvency Law. Responses please before 24 April 2017 to info@bobwessels.nl.

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2017-04-doc1 EU Banking and Insurance Insolvency, 2nd. ed, 2017

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2017-03-doc8 Memo05 EIR 2015 and employment contracts

For the fifth time an invitation, as expressed on my blog www.bobwessels.nl, go to 2017-01-doc13, to participate in developing my book International Insolvency Law, Part II European Insolvency Law. Employment contracts in cross-border insolvency is this time the theme, see attached the 5th memo. Responses please before 10 April 2017 to info@bobwessels.nl. I thank those authors that reacted to earlier memos, by quality responses or by sending forthcoming articles. I even received the English text of a PhD to be defended in Italy!  Memo05

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