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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.

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

 

 9780198759393Professor Matthias Haentjens (University of Leiden) writes the following re the book 'EU Banking and Insurance Insolvency', Oxford University Press, 2nd ed., 2017, authored and edited by Gabriel Moss QC, Bob Wessels and Matthias Haentjens: 'With only little exaggeration, it might be contended that there has been no other area of law in which the developments over the last five years have been so numerous and so fundamental as in European banking and insurance insolvency law. This new edition of EU Banking and Insurance Insolvency critically analyses those developments, and aims to provide expert insight into the most important aspects of modern European banking and insurance insolvency law. The previous edition of this book was published in 2006 and the previous preface written in 2005. That preface started with the remark that European insolvency law had seen ‘a very busy five years’ since the beginning of the twenty-first century. Reference was made to the enactment of the Insolvency Regulation 1346/2000, the 2001/24 Credit Institutions Winding-up Directive (CIWUD), and the 2001/17 Insurance Companies Winding-up Directive (IWUD). Little could the authors know that only a couple of years after that book was first published, the financial world would be shaken to the core and the EU would be severely shocked by consecutive financial, banking and economic crises. These crises led the European legislature to the conviction that the then existing legislative framework was inadequate to deal with the insolvencies of, specifically, credit institutions. A fundamental overhaul of the legislative framework was the result. Since the crisis of 2008, the EU has witnessed a dramatic integration in banking law, as illustrated by the introduction of the Banking Union. A common European deposit guarantee scheme, which initially was part of the Banking Union set-up, might still be a bridge too far for political reasons, although a recent initiative is aimed at the introduction of a ‘European Deposit Insurance Scheme’. However, this Banking Union has introduced harmonized bank insolvency rules for the entire EU and a unified application of those rules for the Eurozone. In addition to the CIWUD and IWUD, the two EU statutory instruments that had been the subjects of the previous edition of this book, the EU legislature has enacted the 2014/59 Bank Recovery and Resolution Directive (BRRD) for all EU Member States and the 806/2014 Single Resolution Mechanism Regulation (SRMR) for the Eurozone. As a consequence, the book EU Banking and Insurance Insolvency needed a fundamental revision, too. Hence, the book is now structured in Parts. In the first Part, two introductory chapters have been significantly extended and now include an introduction to the Banking Union, as well as to substantive, European bank insolvency law. The second Part contains an updated commentary on the CIWUD, while Part III comments on the IWUD, which now forms part of the Solvency II Directive (2009/138/EC). The commentary of the CIWUD and the IWUD have been amended so as to take into account the significant changes that have been made to these instruments as a consequence of the adoption of the BRRD and the SRMR. In addition, several high-profile court cases have been decided in the meantime, which have also been included in the present edition. A new Part IV consists of an extensive commentary on pertinent parts of the BRRD, with references to the SRMR where relevant. The text of the statute has been reproduced and commented upon elaborately only where that was deemed really helpful. For the selection, the guiding principle has been what was the focus point also of the previous edition: cross-border issues of bank and insurance insolvencies. In Part V, eminent reporters discuss the concrete provisions as implemented in key jurisdictions: Ian Fletcher, Hannah Tornley and Robert Amey for the UK; Blanaid Clarke for Ireland; Hubert de Vauplane and Gilles Kolifrath for France; Jens-Hinrich Binder for Germany; Eyvindur G Gunnarsson for Iceland; and Ignacio Tirado for Spain. The book concludes with the full text of the Winding-Up Directive, Title IV of Solvency II, BRRD and SRMR. The book states the law as it was on 1 august 2016. However, this is such a fast-moving area of law that after that date important developments have already occurred. These developments could only be included in a “stop-press notice”, which discusses the Novo Banco case on appeal, and the EU Commission’s Reform Package as published on 23 November 2016. While it now has become clear that the UK will withdraw from the EU, the EU Directives discussed in this book will remain applicable in the UK at least until the EU membership has formally ended, which will probably take between two to ten years. The domestic legislation implementing the same instruments will probably remain in force even longer. The book may thus be interesting for anyone dealing with insurance and bank insolvency or potential insurance and bank insolvency. For solicitors and advocates within the EU advising on the situation, for academics, students, and for in-house lawyers of banks and reinsurance companies. For a detailed table of contents, as well as author information and purchase options: click here (hyperlink to https://global.oup.com/academic/product/eu-banking-and-insurance-insolvency-9780198759393?cc=nl&lang=en&# ).'Professor Matthias Haentjens

 

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

2017-03-doc7 What's a Pifor?

In November 2016 a proposal for a Restructuring Directive was published two weeks ago. Officially it has a much longer titel: ‘Proposal for a Directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU’ (‘Restructuring Directive’). For a short explanation and all related documents, see http://bobwessels.nl/2016/11/2016-11-11-restructuring-directive-published/. It introduces the Pifor, the 'practitioner in the field of restructuring'. Who's he (she)? See my article, based on my column in Global Restructuring Review December 2016.2017-03-24 Wessels IP and Pifor

2017-03-doc6 CERIL

The Conference of European Restructuring and Insolvency Law (CERIL) is an independent non-profit, non-partisan, self-supporting organisation of approximately 75 lawyers and other restructuring and insolvency practitioners, law professors and (insolvency) judges committed to the improvement of restructuring and insolvency laws and practices in the European Union and in its Member States and their operation. CERIL’s primary purpose is to advise, at its own motion or at request, on technical and policy issues relating to restructuring and insolvency laws, regulation and practice and any related laws, both to European Union institutions as well as Member States and EU’s neighbouring countries. The Conference’s vision is to provide a unique independent perspective to endorse significant long-term improvements in restructuring and insolvency systems across Europe, including the European Union. CERIL is a voluntary organisation, based on the shared commitment by its conferees to collect and present their best insights. To become a conferee is by invitation only and free of charge. Conferees are leading scholars, judges and practitioners in the field. Many of them have been active as an expert on matters of restructuring and insolvency to the European Commission or selected as reporter to the European Law Institute’s project ‘Rescue of Business in Insolvency Law’. Conferees come from around 25 European countries and are independent: they do not take a position which may be influenced by professional obligations and relations or act on behalf of a certain interest group. The Conference establishes a platform that allows for the exchange of ideas, in-depth discussions, often in the context of joint studies and statements of advice on technical and policy matters. The Conference may support legislative initiatives on a European Union or national level but also discuss fundamental principles and concepts. Ten Working Parties have been set up to prepare future CERIL statements on such matters as directors liability, acts detrimental to an insolvency estate, the role of shareholders in a restructuring, improving professional and ethical rules applicable to insolvency practitioners, or consumer rights in case of the insolvency of a retailer. CERIL’s governance exists of an Executive and a Board. The Executive is formed by seven conferees: - Prof. Dr. Bob Wessels, Emeritus Professor of International Insolvency Law, Leiden University, The Netherlands (Chair) - Prof. Dr. Ignacio Tirado, Professor (Titular) of Commercial Law, Universidad Autónoma of Madrid; Senior Legal Consultant World Bank (Financial Sector) (Vice-Chair) - Prof. Dr. Reinout D. Vriesendorp, Professor of Insolvency law, University of Leiden; partner De Brauw Blackstone Westbroek, Amsterdam, The Netherlands (Secretary). The other executives are: - Giorgio Corno, Esq., Studio Corno Avvocati Milan, Italy - Prof. Ian F. Fletcher QC (hc), Emeritus Professor of International Commercial Law, Principal Research Associate, University College London, UK - Prof. Tuula Linna, Professor of Procedural Law, University of Lapland, Rovaniemi, Finland - Prof. Stephan Madaus, Professor of Civil Law, Civil Procedural Law and Insolvency Law, University of Halle-Wittenberg, Halle, Germany. For information: www.ceril.eu