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Welcome /  Blog /  2019-04-doc4 Pre-insolvency proceedings - last try

2019-04-doc4 Pre-insolvency proceedings - last try to the book. Tollenaar has a clear, as well as a tenacious style of writing, with which he develops, consistent with his basic notions, his own framework re pre-insolvency proceedings. He, I know, generally agrees with the new EU Restructuring Directive’s restructuring procedure. However, he has voiced its unaligned characteristics and basic flaws. European politicians (as far as they read academic studies) have not been convinced by Tollenaar’s high-level framework for a pre-insolvency plan proceeding. Politicians’ (in charge of ‘making law’), when coming to a legislative result that faces businesses in difficulties, will take into account less rational or calculable considerations, such as protecting jobs, ensuring economic market stability or prevention of fraud. In my experience these desiderata often cloud any rational debate even when it would be focused on the debtor’s circumstances – as in nearly all legislations. My prediction is that the same would take place when political debate will start about a systems based on the author’s proposition of a fundamental right of any creditor to enforce and secure payment in cash. I did not got the impression that the author demonstrated to be aware of this reality.
Where Tollenaar in his last chapter formulates six suggestions for further research (a few less than in his PhD) and acknowledges that his framework (as also the results of any implementation of the Directive, I would argue) necessitates further research in areas as securities law, corporate law and tax law, the topic will remain on the European and the Member States’ agendas. A very readable, thought-provoking and clearly written study makes the book worth examining and presents sophisticated choices for legislators, academics and practitioners dealing with restructuring.

Nicolaes Tollenaar, Pre-Insolvency Proceedings. A Normative Foundation and Framework, Oxford University Press 2019. ISBN 978-0-19-879992-4

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Note: this book I received free of charge from the publisher with the request to announce it or to review it on my blog at