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2017-08-doc7 Insolvency proceedings Oi Brasil and confidentiality

One of the larger intenrational insolvency cases running through the Dutch courts has been Oi Brasil. Oi Brasil Holdings Cooperative U.A. (Oi Coop) is part of the Oi Group. The Oi Group is an international group of affiliated companies, some of which are incorporated under Dutch law and are managed from in the Netherlands (including Oi Coop) and mainly operate from Brazil. Regarding the Oi Group, there is a consolidated judicial restructuring procedure in Brazil. By a decision of 7 July 2017 (ECLI:NL:HR:2017:1280), the Netherlands Supreme Court rejected the appeal against the revocation of the provisional postponement of payment (‘surseance van betaling’) and the bankruptcy of Oi Coop and ruled that on Oi Coop, as a company incorporated in the Netherlands, Dutch insolvency law would aplly and thus that the rules of the Bankruptcy Act are applicable in full. I criticised that decision, see Last week, the IP (‘curator’) of Oi Coop requested the removal of the prohibition on third parties to make public any matters discussed during the hearings during proceedings and the content of the documents. This is in accordance with the Chapter 15 procedure which he is involved in, made on behalf of Oi Coop in the US and in which he has been asked to submit all the documents relating to the procedures in the Netherlands, as well as all reports relating to the relevant oral proceedings, in the context of the discovery proceedings. The basis of the request is that the IP, on behalf of Oi Coop, has requested recognition of its proceedings in the US. In these proceedings he has been asked to submit all procedural documents relating to the procedures in the Netherlands, as well as all reports relating to the relevant hearings. The US court, the United States Bankruptcy Court Southern District of New York, had determined that the IP and Oi Coop should jointly make every effort to eliminate fully or partly the above-mentioned prohibition. The Netherlands Supreme Court decides in favour of the request in so far as it concerns: - submitting to the US Bankruptcy Court Southern District of New York and the Chapter 15 parties to the proceedings all documents filed in cassation (including pleadings and correspondence with the Supreme Court), as well as - Notifying the same court and the Chapter 15 parties of all that has been exchanged during the hearings in the cassation on proceedings on June 13, 2017, all this including the judgment of the Supreme Court and all English translations of the respective documents, however all with the restriction that it is not allowed for Chapter 15 parties to use this information and documents and their contents in any way and in any form outside of the present Chapter 15 procedure.

2017-08-doc6 Presenting Business Rescue Report in Vienna

The European Law Institute (ELI), established in 2011 [], is an independent non-profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development. Building on the wealth of diverse legal traditions, its mission is the quest for better law-making in Europe and the enhancement of European legal integration. By its endeavours, ELI seeks to contribute to the formation of a more vigorous European legal community, integrating the achievements of the various legal cultures, endorsing the value of comparative knowledge, and taking a genuinely pan-European perspective. As such, its work covers all branches of the law: substantive and procedural; private and public. The Rescue of Business in Insolvency Law Project team began their work late 2013 with the challenging aim of designing elements of an appropriate legal enabling framework for business rescue in Europe. This includes certain statutory procedures that could better enable parties to negotiate solutions when businesses become financially distressed. ELI is pleased to announce that the final Report of this flagship project is ripe for presentation at the Annual Conference in Vienna, September 6, 2017. Panel members include Prof. Stephan Madaus (Halle-Wittenberg, Germany) and myself, both of whom are the Project Reporters, and Jenny Clift (UNCITRAL), Tuula Linna (University of Helsinki) and Elsbeth de Vos, Senior Judge District Court Amsterdam. The Rescue of Business in Insolvency Law project is timely and may have a significant and positive impact on the harmonisation efforts of the European Commission as laid down in the November 2016 Proposal for a Directive on preventive restructuring frameworks. The Report of over 375 pages contains 115 recommendations on a variety of themes affected by the rescue of financially distressed businesses: legal rules for practitioners and courts, contract law, treatment and ranking of creditors’ claims, labour law, laws relating to transaction avoidance and corporate law. The Report’s ten chapters cover: (1) Actors and procedural design, (2) Financing a rescue, (3) Executory contracts, (4) Ranking of creditor claims; governance role of creditors, (5) Labour, benefit and pension issues, (6) Avoidance transactions in out-of-court workouts and pre-insolvency procedures and possible safe harbours, (7) Sales on a going-concern basis, (8) Rescue plan issues: procedure and structure; distributional issues, (9) Corporate group issues, and (10) Special arrangements for small and medium-sized enterprises (SMEs) including natural persons (but not consumers) Following the presentation and discussions, the ELI General Assembly will be given the opportunity to vote on this ELI Instrument. ELI Members, not present, may cast their vote as of 28 August 2017 electronically. Once approved, the Report will be published on ELI’s website. For a special report, see 2017-08-25 Business rescue Special Report

2017-08-doc5 4th edition Int'l Insolvency Law Part II ready for launch!

My book International Insolvency Law: Part II European Insolvency Law is due to be published. Two weeks ago I returned to the publisher, Wolters Kluwer, a pile of over 1100 pages of the second proof. With Part II, I conclude the treatment of Volume X, in its 4th edition. The first part, titled International Insolvency Law: Part I Global Perspectives on Cross-Border Insolvency Law, was already published at the end of 2015. See The core of Part II European Insolvency Law is, rather predictable, a detailed commentary of the recast of the Insolvency Regulation which came into legal effect 26 June 2017. A rather innovative working process (my own take on it!) for this volume X, Part II, is the introduction of a new element in my writing by interacting with persons active in the area of European restructuring and insolvency. Through my blog ( and via LinkedIn, I have published drafts of texts of this book (from January to May 2017) with the invitation to those interested to provide me with sources of literature, precedents, court cases or additional comments to these drafts. Eight times such an invitation was expressed, with the request to send any useful information or comments on my drafts to me within two weeks. By working this way one could say that through a deliberative public participatory drafting process I was able to draw on the expertise and practical experiences of these respondents. In this way, too, a broad spectrum of jurisdictions and insights could be included. An advantage being also that the developments and views included in this Volume X, Part II, result in an illustrative and thought-provoking treatment of the Insolvency Regulation (recast) which will allow users of this book to adapt to the new rules and to adjust to its system rapidly and with confidence. In all I received ‘likes’ from around thirty persons, all over the world, including Australia, Columbia, India and Indonesia. Contributions, including references to literature, I received from Gert-Jan Boon and Olga Korneeva (Leiden Law School), Ilya Kokorin (St Petersburg; Leiden Law School), Grégory Minne (Luxembourg), Lukas Schmidt (EBS University, Wiesbaden), prof. Horst Piekenbrock (University of Heidelberg), whilst Nicoló Nisi (Bocconi University, Milan) provided me with the draft text of his PhD on groups of companies in EU private international law. I am most grateful to all contributors for their support of my work. It is a great pleasure to notice that the third edition of International Insolvency Law, published early 2012, has been received so well by practitioners, judges as well as scholars. I thank the reviewers for their positive remarks and constructive criticism. It is especially rewarding that the book is used in so many countries. The reviews I have seen are from Belgium (Arie van Hoe, Tijdschrift voor Belgisch Handelsrecht 2013/8, 823), Estonia (Paul Varul and Signe Viimsalu, Juridica International XIX/2012, 187/188), France (François Mélin, Journal du droit international 2012, 1116/1117), Germany (Jessica Schmidt, in: 14 German Law Journal 2013/07, 974-976; Heinz Vallender, Zeitschrift für Wirtschaftrecht ZIP 2/2013, 96), Italy (Giorgio Corno, Nuovo Diritto delle Società 2013), Lithuania (Rymvidas Norkus, Justitia 2012/77, 120/121), Poland (Michał Barlowski, Kwartalnik Nauk O Przedsiębiorstwie 2013/2, 99-101), UK (Paul Omar, eurofenix Summer 2012, 13) and USA (Samuel Bufford, International Insolvency Law Review 2/2013). Since three years I left Leiden University as an emeritus, having had a chair in International insolvency law from 2007 – 2014, which followed my chair in general civil law and business law at Vrije University Amsterdam (1988 – 2008). I am pleased to express that cordial relations have been maintained with many of the Leiden lecturers and researchers, especially those within the TRI group (Turnaround, Rescue & Insolvency Law (University of Leiden, Leiden Law School)). In addition to the use of my own private library, I have been very fortunate to having been – during 2016 – an External Scientific Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. Its library is like a holiday’s swimming pool for little children. You want to jump in the water the whole day long. I thank Juja Chakarova, Head of Library, and her staff for the assistance received. In Part II the law is stated on the basis of information available to me at 1 May 2017. Readers are invited to send me comments, cases or literature at the following address: For information go to

2017-08-doc4 Australia looks at Dutch draft legislation

Geoff Green, a strategist from the National Australia Bank, talks about the 'undercover administrator' indicating the 'intended insolvency practitioner' (beoogd curator) in present draft legislation in the Netherlands, see The blog uses the Dutch reform to focus on the issue of non-publicity and what Australia is doing to minimise the problem. The person playing the role of the intended IP presently is standing in the wings, but whether s/he comes to the Dutch restructuring and insolvency stage remains to be seen. In the Netherlands – like in large parts of Europe – several weeks of holidays are coming to a close, but the Dutch Parliament still is enjoying its recess. Until, I think, the first week of September, this piece of legislation is in limbo.

2017-08-doc3 Post-Brexit cross-border judicial cooperation

Published August 22, the UK's HM Government issued a paper outlining the UK's position on a '... cross-border civil judicial cooperation framwwork', with the subtitle 'A future partnership paper'. The UK, the papers states, seeks a deep and special partnership with the EU. Within this partnership, cross-border commerce, trade and family relationships will continue. The text goes on to preach that the UK wishes to buld on years of cooperation across borders, it is vital for UK and EU consumers, citizens, families and businesses, that there are coherent common rules to govern interactions between legal systems. To this end, the UK, as a non-member state outside the direct jurisdiction of the Court of Justice of the European Union (CJEU), will seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU. It involves a large body of rules, including cross-border insolvency. See The paper is build on at jeast three misconceptions. One. The UK government walzes through its unrealistic dreams: you can not leave the dinner, not paying your part of it, and proposes for another dinner the next day, without the bill having settled. Two. The paper reads as a long letter of remorse: wishes for legal certainty, avoiding disruption, preventing uncertainly and confusion. You cannot have your cake and eat it. Or is the paper a long story only to escape the jurisdiction of the CJEU? Three. The paper is patronising in that it wishes to ensure certainty for EU citizens and businesses which is mutually beneficial for the UK and the EU. The UK says so, only after consulting English organisations. For a 'new partnership to promote our shared interests and values' (gulp), it takes two to tango.