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Blog 2014

2014-12-doc10 Recent news from Turnaround, Rescue & Insolvency (TRI) Leiden

During 2014 the research group of Turnaround, Rescue & Insolvency of Leiden Law School has put in a great effort in researchprojects. This has been achieved with the much valued contribution of over 100 expert consultants in these projects and some 10 Leiden Law School students. On this blog I have reported on the IOH project and the JudgeCo project. What will be especially appreciated by our sponsors (European Union, International Insolvency Institute, INSOL Europe) is that these projects, which both ran over two years, are delivering their outcomes according to the agreed planning. Recently TRI-Leiden published its December 2014 newsletter, describing the projects mentioned and announcing new ones, focus on persons involved in our research work, and reports about the JudgeCo Judicial Training Sessions that took place in Riga and Amsterdam, with some 60 European judges. Please find attached this newsletter TRI Leiden Newsletter December 2014  or go to http://www.tri-leiden.eu/news/news-overview/newsletter-tri-leiden--december-2014/

2014-12-doc9 My 5 best articles in 2014

Two weeks ago I was asked to select five of my 'best' articles published in 2014. Fortunately 'best' is subjective enough to come to a personal choice (out of selection were my publications in the Dutch language). These five are: - 'Treatment of Tax Claims in International Insolvencies: Europe and Beyond', in: J.G. Princen e.a. (red.), De Curator en de Overheid, INSOLAD Jaarboek 2014, Deventer: Kluwer 2014, pp. 207-227 (see this blog 2014-09-doc6); - the paper 'Towards a Next Step in Cross-border Judicial Cooperation', a piece to read within the JudgeCo project, to improve cross-border judicial cooperation, funded by the European Commission and the International Insolvency Institute (III) and distributed to over 100 judges in Europe (see 2014-12-doc6); - the paper on Business rescue in Europe - Setting the Scene, a backgound sketch for those engaged in the Business rescue project under the aegis of the European Law Institute (see 2014-12-doc7); - 'On the future of European Insolvency Law', the INSOL Europe Academic Forum’s 5th Edwin Coe Lecture, in: Rebecca Parry (ed.), European Insolvency Law: Prospects for Reform, INSOL Europe, Nottingham Paris, 2014, pp. 131-158 (reprinted in International Insolvency Law Review 2014/3, pp. 310-332 (see this blog 2014-11-08); - My valedictory lecture 'Teaching and Research in International Insolvency Law: Challenges and Opportunities', published in a short version on this blog (2014-04-doc10). Its full hard copy version has been distributed a few weeks ago. It is also attached. Valedictory Wessels - final Valedictory Wessels Cover - final By the way, for my future activities and publications, follow this blog (you can subscribe to it for free by providing the required information at the bottom on the right 'Follow').  

2014-12-doc8 On the future of European Insolvency Law

Over a year after delivering the INSOL Europe Academic Forum’s 5th Edwin Coe lecture in Brussels (October 2012) it has been published, see Bob Wessels, 'On the future of European Insolvency Law', in: Rebecca Parry (ed.), European Insolvency Law: Prospects for Reform, INSOL Europe, Nottingham Paris, 2014, pp. 131-158 (also published in: 5 International Insolvency Law Review 2014/3, pp. 310-332). In this lecture I have argued that 'insolvency' is a true part of the legal skeleton for an internal market in the meaning of Article 114 TFEU. The Commission has put the revision of the Insolvency Regulation in its Work Programme for 2012. The revision is one of the measures in the field of 'Justice for Growth' set out in the Commission’s Action Plan implementing the Stockholm Programme. The revision links in with the EU’s current political priorities to promote economic recovery and sustainable growth, as set out in the Europe 2020 strategy, and its very recent initiative to modernise insolvency proceedings and to contribute to an environment that offers second chances to failing entrepreneurs, leading to the recommendation of March 2014. I have given also some examples of interaction between EU law and national law, the lack of cooperation between Member State to align their implementation efforts and the necessity for a unified and coherent EU law. With insolvency being one of the essential pillars upon which the internal market rests, we presently lack clear concepts, terms and norms as well as guiding principles. This results in the present rather fragmented and inconsistent nature of European insolvency law. The challenge is to understand and articulate the paradigm shift in insolvency, from the sacrosanct 'pay what you owe' to the balanced promotion of the continuity of companies in distress and reintegration of over-indebted consumers into society. Further research and debate should lead to the creation of a design for an insolvency law that continuously will meet the key objectives within the focus of EU policies on the longer term. Overarching and guiding principles then must fit in the overall legal structure for an internal market. More specific, European insolvency law’s substantial and procedural forms should be brought into alignment with norms and principles which are predominant in non-insolvency law area. European insolvency law, in future, will further challenge the tension which exists between underdeveloped legal policies concerning insolvency in the EU and the traditional sometimes out-moded national concepts of insolvency law. There is much to be done, interaction, synchronisation, adjustment, unity, coherence. In my opinion this calls for a coordinating unit, which will operate at EU institutional level. Such an organisation (I suggest to call it: European Insolvency Service) would have as an overall aim to develop and maintain a world-class European insolvency law and regulatory framework, to deliver services to insolvency practice (creating forms and maintaining relevant insolvency databases), to assist in the development of a regulation of the insolvency profession, to coordinate basic information to be of assistance to courts, to ensure and facilitate coordination in cross-border cases, to advise government departments and agencies on insolvency and related issues, to provide information to the public via its website, and to continuously monitor the efficiency and effectiveness of all matters of European insolvency law. 2014-12 - ON THE FUTURE OF EUROPEAN INSOLVENCY 2012-10-11

2014-12-doc7 Business rescue in Europe - Setting the scene

Since early 2014, under the umbrella of the European Law Institute, I am engaged in a project named Business rescue in insolvency, together with professor Stephan Madaus (Halle-Wittenberg) and adjunct professor Kristin van Zwieten (Oxford). As the project title indicates, it is the issue of rescue of business that lies at the core of this project. The ultimate aim is to design a framework that will enable the further development of coherent and functional rules for business rescue in Europe. Insolvency law is at the forefront of reform initiatives in Europe and beyond, and any contemporary developments will be given due consideration as work on the project progresses. The project is to be carried out over a period of 30 months. During its first year (2014) National Correspondents (NCs) will draft inventory reports on their respective national insolvency laws, based on a detailed questionnaire prepared by the reporters. NCs are experts from a selected group of 14 different European countries which each represent different approaches to insolvency law. Some topics that will be covered in those reports include: governance and supervision of in-court and out-of-court rescue, special protection for financing a rescue, treatment of executory contracts, ranking of creditors, avoidance powers, restructuring plans, special arrangements for SMEs, and the position of liquidators and directors. In addition to these national reports, an inventory report on international recommendations from standard-setting organisations, such as the World Bank and UNCITRAL, will be drafted. The results of the first year’s work will be presented and discussed at a conference (open for invitees only), which is scheduled for 19/20 March 2015 in Vienna. In the later stages of the project, these outputs will be used by the project team to formulate their recommendations for reform, which are at this stage expected to be presented in the form of a legislative guide. This process will be assisted by input from a specialist advisory committee (AC), staffed by experts in relevant areas of law and legal practice across Europe. I have explained the project and its development at the annual meeting of the European Law Institute in Zagreb (Croatia), end September 2014, using the attached paper, which is setting the scene within which our work will develop. Wessels - Business Rescue in Insolvency Law - Setting the Scene

2014-12-doc6 JudgeCo Principles and Guidelines - the last phase

On this blog I have reported regularly about the project (funded by the European Commission implementing its programme on improving cross-border judicial cooperation and the International Insolvency Institute, III) establishing non-binding principles and guidelines for such cooperation in insolvency cases. The project is a joint venture between the Leiden Law School (www.tri-leiden.eu) and the Nottingham Law School. We have discussed and debated the draft JudgeCo Principles and  Conclusion with some 200 judges from nearly all EU Member States, during international conferences in Amsterdam, Barcelona, Durbuy (Belgium) Opatija (Croatia), Riga and Trier. the documentation the judges received included the attached paper 'Towards a Next Step in Cross-border Judicial Cooperation'. In the paper I conclude, that the court cases mentioned demonstrate the usefulness of non-binding rules (soft law), providing not only food for thought but also guidance for courts. Unrelated to insolvency, in its method and result I regard the JudgeCo project briefly described in the paper as an instrument of choice in solving international commercial disputes in which a new concept of ‘judicial comity’ is evolving, providing a framework of ground-rules for establishing and developing judicial dialogue both in a general context and in relation to a specific case. In the light of history in England & Wales, cooperation between judges and academics as we have experienced in the JudgeCo project is truly remarkable. Direct and indirect court-to-court communication may enhance international collegiality that has emerged amongst judges in cross-border insolvency cases, a form of judicial globalisation that will lead to the development of more cross-border methodologies such as protocols. This is of considerable interest to EU Member States that already have adopted (e.g. Poland, Romania, UK, Slovenia and Greece) or are considering adopting the UNCITRAL Model Law on Cross-Border Insolvency 1997, whose Article 27 provides a non-exhaustive list of how cooperation may be implemented, including through communication between courts and office-holders as well as cooperation through co-ordinating concurrent proceedings. The EU Cross-Border Insolvency Court-to-Court Cooperation Principles and Guidelines (or: JudgeCo Principles and Guidelines), in its final form, will indeed symbolise a next step in cross-border judicial cooperation in insolvency cases and contribute to an efficient and effective administration of insolvency cases. In the next two weeks the JudgeCo Principles and Guidelines will get their final form, using the comments and suggestions received from judges and other interested parties. In their final form you may find them on this blog (my guess mid January 2015) and via www.tri-leiden.eu.Wessels - Amsterdam JudgeCo paper