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2019-01-doc3 Modified universalism in European cross-border insolvency?

In legal theory, the regulation of cross-border insolvency is dealt with from two different angles. Under the universalist approach, cross-border insolvencies are administered pursuant to a single global insolvency regime. All of the debtor’s assets are distributed by a single insolvency office holder, regardless where the assets or claimants are located. The ideal of universalism is one court, one law (and sometimes also one proceeding, one estate). In contrast, under the territorial approach, each country exercises its own domestic insolvency laws in relation to all of the debtor’s property and all of the creditors located within its jurisdiction. This approach does not recognise any extraterritorial dimension to insolvency law.

Although “universalism” and “territoriality” are terms frequently used, they only describe the points of departure of several doctrinal theories. The contrast between “universalism” and “territoriality” serves to demonstrate the possibility of a political choice between a system in which there is one set of insolvency proceedings with worldwide effect, and a model in which the effect of such proceedings will be limited to the borders of the state in question. In practice, however, there is no single state in the whole world fully embracing one of these models. Most countries have introduced modified or mixed models of these theories. Since the beginning of the 1990s, developments in legislation in several countries have also molded these doctrinal theories into concepts that can be better used in practice. For instance, in theory the “territoriality” model can be limited by; (i) narrowing the conditions for opening proceedings to the existence of an establishment belonging to the debtor in the territory of the state in question, rather than the mere presence of an asset; or (ii) allowing foreign creditors to participate in the proceedings, resulting in a “territorial” estate, but a “universal” composition of the body of creditors and a “universal” system for distribution; or (iii) introducing mechanisms for cooperation between, or recognition of, the various territorial proceedings, of which the concept of bilateral conventions between states is an example. Universalism, on the other hand, may be limited in its broad effects by; (i) allowing certain subordinated territorial proceedings in other states to run alongside the main insolvency proceedings, which is the German model for cases outside the EU; or (ii) by creating exceptions to the application of the law of the state in which proceedings have been opened (the lex fori concursus), which is the EU Insolvency Regulation model. In most countries, including English speaking countries and the USA, models are – or have been – used that fall between the stringent principle of territoriality on the one hand and the panoramic principle of universalism on the other. Such “fall between” models are usually referred to as “modified”, “limited”, or “curtailed” universalism, as most of them have a universalist element at their core. The EU Insolvency Regulation is generally regarded as being based on a mixed model or a model of modified universalism.

Similarly, in the UK, the idea of “modified” universalism has set the tone. An example is the UK House of Lords decision of 2008, HIH, which dealt with the collapse of an Australian insurance group. In HIH, Lord Hoffman, noted that “… the primary rule of private international law which seemed to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross-border insolvency law since the eighteenth century”. Lord Hoffman’s view on modified universalism, however, was not adopted by three of the other four judges. Nevertheless, the UK House of Lords ruled that the English assets of four companies in liquidation in Australia and in ancillary provisional liquidation in England must be remitted to Australia for distribution under the rules of Australian insolvency law.

The variations of “modified” universalism and its manifestations – where “main” proceedings are supported by “ancillary” proceedings or “secondary” proceedings – have sparked initiatives for cooperation between courts or insolvency office holders, in circumstances where the applicable legislation itself did not provide grounds for such relief. Although supporters of this type of cooperation are generally in favour of a worldwide convention, they acknowledge the present limited and insufficient public law framework for international insolvency. Given the fact that global insolvency proceedings differ in their goals and in their legal consequences, the pragmatic solution is, according to this view, to devise a “protocol” describing how the administration of proceedings should be exercised in each individual international insolvency case. All courts and insolvency office holders involved should communicate and coopereate, based on several sets of non-binding principles and guidelines, to work towards the solutions sought in the protocol. Such cooperation is crucial to the success of the modified universalism concept.

Practical application

Meawhile, international scholars have been looking for improvements to the model of modified universalism. In her recent book, professor Irit Mevorach at the University of Nottingham combines several non-binding sources of international law with behavioural and economic theory. She sets out to translate modified universalism into binding international law and examines how to choose the right instrument for cross-border insolvency as well as the impact that instrument design has on decisions and choices. The book is presented as a blueprint for meeting the demands of future cross-border insolvencies. Although not a new concept, professor Mevorach makes the argument that several of the available means in the modified universalism approach – soft law principles and guidelines, best practices, etc –  may be regarded as customary international law; a legal source that fills gaps in international treaties, influences treaty regimes, and regulates areas not covered by treaties or by other instruments or regarding countries that are not parties to a treaty. Being regarded as “customary international law” would bring these principles and practices under the international jurisdiction of the International Court of Justice via Articles 36 and 38 of the Statute of the International Court of Justice.

Chicago-Kent College of Law professor Adrian Walters also recently called for action on the actual implementation of the universalist approach, since cross-border insolvency law scholars have devoted much attention to the theoretical questions of international system design, but paid less systematic attention to how a universalist system can be implemented in the real world by institutional actors such as legislatures and judges. Looking at the UK’s and the USA’s reception of the UNCITRAL Model Law on Cross-Border Insolvency, Walters’ argument is that modified universalism offers no convincing theory of how a universalist system can be institutionalised in practice, in the absence of more and harder law by individual country legislatures. The focus must shift from practitioners and courts to state legislators. This would also be neccesary as for instance the Model Law lacks a system of choice-of-laws. In April 2010, at the initiative of the International Bar Association (IBA) at UNCITRAL, the idea to work on a convention was tabled in cooperation with the Hague Conference on Private International Law. However, a different course – that of creating further model laws – was eventually chosen.

The EU approach

It is generally agreed that the recast EU Insolvency Regulation (EIR 2015) uses the “modified universalism” model in relation to an insolvent debtor’s assets. This model results in the potential split of insolvency proceedings against an insolvent debtor who has operations in two or more EU jurisdictions (Denmark excluded). Main insolvency proceedings can be opened in member state X, when the debtor’s centre of main interest (COMI) is in that member State (Article 3(1) EIR 2015); these will extend to assets situated in other member states, except those where secondary proceedings have been opened. Secondary insolvency proceedings can be opened in the other member states where the debtor has an establishment within the meaning of Article 2(10) of the EIR 2015, but are confined to local assets. The proceedings, as they are both concerned with the same insolvent debtor and its estate, should be coordinated, but on a practical level they do not operate on an equal footing. The insolvency practitioner in the main proceedings has the dominant role and has several possibilities open to them for intervening in secondary insolvency proceedings. This underlying model has been referred to as “mitigated” or “modified” universalism. In my own publications I have introduced the concept of “coordinated universalism”. This concept both focuses on a certain conflict-of-laws rule or norm of private international law, and appeals to interrelated main and secondary insolvency proceedings coordinated by courts and insolvency practitioners, in line with their respective duties. In literature, the term has only found slight support, however, including in a 2013 opinion by Advocate General Sharpston at the European Court of Justice (CJEU) in Ralph Schmid etc v Lilly Hertel.

The name to describe the systematic model underlying the European Insolvency Regulation has not been decided yet. In an October 2016 judgment of the CJEU related to the interpretation of Article 5 of the EIR 2000 on third parties’ rights in rem (now embodied in Article 8 of the EIR 2015), two other terms for describing the model are introduced. The Court observed that the regulation: “17 … is based on a so-called ‘attenuated universality’ model, according to which, first, the law applicable to the main insolvency proceedings and its effects is that of the Member State within the territory of which those proceedings were opened, albeit that, secondly, that regulation lays down a number of exceptions to that rule. Article 5(1) of that regulation lays down one of those exceptions.” Not modified, or coordinated, but “attenuated”: a word the Advocate General did not use in the relevant associated opinion. In the English version of the judgment, the wording refers to “… a model of qualified universality”. In Dutch, it is referred to as “afgezwakte universialiteit”; in German “abgeschwächten Universalität”; in French “d’universalité atténuée”.

So the point of departure for the European Insolvency Regulation is the universalist model, but the regulation then lays down a series of special rules that operate as exceptions and that adjust, qualify, refine and dilute its universalism. This may be a fair reflection in as far as it relates to the private international law rules of the Regulation, but it does not take into account the mandatory coordination between main and any secondary insolvency proceedings by courts and insolvency practitioners.

References

HIH Casualty & General Insurance Ltd, Re [2008] UKHL 21 (para. 30)

Irit Mevorach, “The Future of Cross-Border Insolvency. Overcoming Biases and Closing Gaps”, Oxford University Press 2018

Adrian Walters, “Modified Universalisms & the Role of Legal Culture in the Making of Cross-Border Insolvency Law” (forthcoming in American Bankruptcy Law Journal)

Attorney General Sharpston, Opinion in case C-328/12, ECLI:EU:C:2013:540 (Ralph Schmid etc v Lilly Hertel)

Court of Justice of the EU 26 October 2016, Case C 195/15 (SCI Senior Home v Gemeinde Wedemark, Hannoversche Volksbank eG)

This is a slightly adapted version of a regular column I am writing for Global Restructuring Review (GRR) on a topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication, but here is a link to the full piece, which appeared in October 2018 on GRR’s website at http://globalrestructuringreview.com

2019-01-doc2 People - Planet - Privaatrecht

People, Planet, Privaatrecht, is de titel van een Rotterdamse ‘Jonge Meesters’-bundel. Zeven master studenten van de Erasmus School of Law schrijven, in het kader van hun Master Privaatrecht, over de rol van het privaatrecht bij het voorkomen en herstellen van bedrijfsgerelateerde mensenrechten- en milieuschendingen in internationale productieketens. Zij doen dat onder begeleiding van hun docenten. Dat levert een fraai overzicht op.

Uitdagend lijkt me, vooral voor jonge a.s. juristen, om aan de slag te gaan met onderwerpen die niet mede door historische, dogmatische bagage worden bepaald. Ook: het is de moderne, global world, met internationale productie- en distributieketens, waarbij een geengageerde jurist ook zijn of haar eigen ideeën kwijt kan, terwijl het ontwikelen van de eigen zienswijze verder natuurlijk ook betekent dat de eigen opvatting moet passen in de zich in ontwikkelende juridische zienswijzen, die vaak mede worden gevormd door best practices van (internationale) non-binding standard setters. Kortom, zeker niet een standaard aanpak. Het onderwep staat ook in het hart van de open Nederlandse samenleving, omdat veel van onze dagelijkse producten (bekend voorbeeld is het maken van kleding en sportschoenen) in het buitenland worden geproduceerd, niet zelden onder on-acceptabele omstandigheden. Het in het boek behandelde thema sluit aan bij zich in het laatste decennium voordoende juridische ontwikkelingen die verband houden met kwesties van internationaal maatschappelijk verantwoord ondernemen (IMVO).

De inleiding van de docenten zet inzichtelijke de rol van het recht in de IMVO-context uiteen tegen de achtergrond van de OECD Guidelines for Multinational Enterprises, alsmede de daaruit volgende juridische verplichtingen. Ook aandacht voor de (tot nu toe 7) IMVO-convenanten. Deze (soft law) regelgeving heeft haar invloed bij onder meer de aansprakelijkheidsprocedures tegen Nederlandse bedrijven als Shell en Trafigura in verband met de schadelijke gevolgen van hun bedrijfsactiviteiten in ontwikkelingslanden.

De individuele bijdragen handelen, in het licht van de privaatrechteljke aspecten van IMVO, onder meer over productie en verkoop van surveillancecamera’s, misstanden bij de winning van grondstoffen voor windturbines inclusief compliance-clausules, toezicht en handhaving, de reguleringskant, onder meer het mededingingsrecht (waaronder IMVO-convenanten in de bancaire sector, de textiel- en kledingsector), transparantieverplichtingen en ex ante regulering, de verwachte effectiviteit van het Kleding- en het Bankenconvenant, en de rol van de UNCITRAL Arbitration Rules daarbij, tot stand gebracht binnen bepaalde sectoren van het Nederlandse bedrijfsleven.

Het boek biedt, voor mij als geinteresseerde maar op dit terrein onervaren jurist, een fraaie inkijk in ontwikkelingen en juridisch relevante aspecten van IMVO en het debat daarover in Nederland. De jonge meesters van 2018 geven hun eigen, originele kijk op de vraag welke rol het privaatrecht kan spelen bij het bevorderen van IMVO en bij redresseren van schade aan mens en milieu als gevolg van ondernemingsactiviteiten in het buitenland. Ik kreeg het boek toegezonden namens de sectie Burgerlijk Recht van Erasmus School of Law (ter vermaak gedurende de afgelopen dagen rond de jaarwisseling). Zowel als het initiatief van de betrokken docenten als het onderwerp dient een bredere belangstelling, vandaar deze korte signalering via mijn blog (via www.bobwessels.nl).

L. Enneking e.a. (red.), People, Planet, Privaatsrecht, Den Haag: Boom juridisch 2018. ISBN 978 94 6290 575 7, 284 pag.

2019-01-doc1 The Future of Cross-border Insolvency

In her book The Future of Cross-Border Insolvency: Overcoming Biases and Closing Gaps, University of Nottingham’s professor of international commercial law Irit Mevorach explores theoretical and practical developments in the field of cross-border insolvency. She uses a wide scope including both commercial entities and financial institutions. She also employs a broad interdisciplinary perspective, including public international law, international (soft) law making, and behavioural and economic insights. Nevertheless, in some 260 pages she succeeds in presenting a gripping study. The book rather differentiates from her earlier work, ie the development and success of cross-border insolvency instruments, the glass half-full, she characterises this research. Now it’s time to look at the glass half-empty with the aim to provide insights about the future of cross-border insolvency and how the system can be improved going forward.
The book was published by Oxford University Press in 2018. Mevorach uses six chapters to build her theory, which is supported by a wealth of international sources. I am pleased to see that throughout her work she refers to several of my publications (when I see this correctly, always with approval) or for instance also to the principled study my colleague Ian Fletcher and I published and presented in 2012 to the American Law Institute.
Some short observations follow below, related to her study. Mevorach’s starting point is the given that the overriding approach to cross-border insolvency to date is ‘modified universalism’. It uses prescribed norms for efficient centralization of a process dealing with insolvency, mostly aimed at one corporate debtor, divided into two or more insolvency proceedings and the rules for cooperation in cross-border insolvency proceedings. Modified universalism is not a noncommittal appeal to the ideal of full universalism, rather still a somewhat fragile line of thinking, trend or general principle, quite amorphous and not adopted or applied universally. Moreover, in practice, it is always under attack of territorialism. Courts in sovereign countries imposing their own rules, encouraging a multiplicity of proceedings which in turn escalates costs and go against the anathema of maximising the enterprise value, which is professed as the core goal of any effective insolvency regime. So Mevorach raises the question of whether deviations from modified universalism represent true preferences, whereby a more territorial approach is been regarded as desirable at least by some countries; what holds modified universalism back?, and from the glass half-full perspective, what was so worthwhile that modified universalism spread over large parts of the globe, although what modified universalism itself is, is rather vague, and, as said, its implementation in practice is not always uniform.  
Mevorach then submits that territorialist inclinations can be explained by bounds on decision making exacerbated by capacity gaps and differences in starting positions. She reports about behavioural theories and experiments which have shown these bounds in real-world circumstances in the form of recurrent biases. In this light, the author argues, that it can be expected that territorialist inclinations are affected by biases. The decision process is influenced by loss aversion (exaggeration of losses compared to gains), status quo (aversion to change) and perceived endowments in cross-border insolvency (people want to get more to give up something). Mevorach sees this way of acting especially in relation to multinational financial institutions and I tend to agree with her. In a forthcoming publication ‘Research Handbook on Cross-border Bank Resolution’ (Matthias Haentjens, Bob Wessels (eds.), Edward Elgar, 2019) I have drawn this conclusion. The phenomenon of short-termism bounds on will-power may all contribute to territorialist tendencies, such as asset ring-fencing or lack of or minimal cooperation, she advances. Cognitive psychology and behavioural international law lead in Mevorach’s words to a cross-border insolvency system with a debiasing role, which can overcome and address possible bounds in decision making. Mevorach argues, therefore, that the cross-border insolvency system has a ‘debiasing’ role where, through adoption of certain strategies and tools, it may be able to align choices with optimal solutions. That’s quite a challenge!
In the second edition of my book on International Insolvency Law (2006) I tossed the idea that when States are involved in exercises of recording ‘best practices’ or follow these as were they approved as ‘law’, it is possible to qualify these ‘best practices’ as ‘customary international law’. I used the ideas of Culmer (1999), when he was assessing the use of the – at that time well known – Concordad. The result of such a thought experience would be that such practices would be promoted to the international jurisdiction and its norm of guidance to decide cases, in the meaning of article 36(2)(b) and article 38(1)(b) Statute International Court of Justice. In the 2015 edition of my book I declared, however, that this topic was beyond the boundaries of the book. So, at least in that publicatoon, no further discussion of the different aspects of soft law, see para. 10089 and 10116, in the book mentioned.  
I was therefore pleasantly surprised that Mevorach, as one of the tools to be able to align choices with optimal solutions in cross-border insolvency, uses customary international law (in her abbreviation: CIL) as a key legal source that fills gaps in international treaties, influences treaty regimes, regulates areas not covered by treaties or by other instruments or regarding countries that are not parties to a treaty or to another regime. In a convincing way Mevorach argues – aspect per aspect, layer by layer, point by point – that modified universalism can fit into the general approach to CIL, based on a thorough study of sources of public international law. She also argues that CIL can assist in the areas where biases impede progression to more optimal solutions, but that it is necessary to reconceptualise the position of modified universalism delinked from pure universalism as a standalone approach, with greater emphasis of the international role of cross-border insolvency. Recognising that CIL has important limitations, she is nevertheless convinced that cross-border insolvency norms can be translated into technical rules in written international instruments. Although the general view in the field of cross-border insolvency has been that a global treaty is the ultimate ideal, reflecting the aspiration to eventually reach a purely universalist system, she makes the case that via soft law instruments (such as the (future) Model Laws from UNCITRAL) that are utilized in various international law subsystems may in fact be ‘harder’ than a treaty. Specifically, a model law approach can possess the characteristics of hard law, while retaining flexible features that induce participation. Her arguments include an economical analysis of international law, an assessment of incentives and sanctions that may encourage reciprocal behaviour and the effectiveness of certain tools and the interrelation between compliance and problems of institutional and regulatory capacity. I concur with her assessment of the role of capacity building and stress with her the importance of mutual trust in each other and each other’s legal systems, within or outside the EU and the internationalisation of private international law. Here, the participants in the debate, legislators, regulators and judges should act also as creators of standards and rules for cross-border insolvency. CIL acts as a legalisation stamp, to strengthen the cross-border insolvency system. This principled approach unfolds foundations of modified universalism, whereas Reinhard Bork’s 2017 book on Principles of Cross-border Insolvency Law – equally important – reveals basic values and commonalities between insolvency foundational principles across legal systems. He distinguishes three groups of principles, which may help judges to decide in individual cases and could provide functional building blocks for shaping cross-border insolvency law. Where his approach clarifies the present legal puzzle with looking for shared norms, Mevorach’s book adds a strong future normative element, assesses the right instrument to go forward and – addressing behavioural and economic theories – claims that her solutions could take into account, even could potentially overcome behavioural biases in decision-making. For a short review of Bork’s book, see http://www.bobwessels.nl/blog/2017-10-doc1-book-bork-on-cross-border-insolvency-law/
 
There remains a lot to be done, and Irit Mevoracht has skilfully put a revival of private international law relating to restructuring and insolvency on the top of the global agenda. Cross-border insolvency law should engage in international norm creation especially through courts and other authorities presiding over cross-border insolvency cases. They have done so, more ad hoc in the past. They should do so in the light of all available new sources. Also regulators, policy makers, and international organizations should be engaged in international insolvency law making and should be, as Mevorach points out, less context-dependent and should perceive their roles more broadly, considering public international law sources and mechanisms for creating and enhancing international obligations.
The book is essential reading for all interested in the on-going development of a solid cross-border insolvency system. It is not only of importance for academics and researchers. It is an original and topical presentation of a way to get the glass filled better than half and should be read and discussed by legislators (mostly working in territorial isolation) to conceptualise what is needed to assess and improve the structure of its existing cross-border insolvency framework. The book may also serve as a benchmark for the test whether for a country any insolvency system is adequate for the future challenges in the coming decades. In the context of the European Union attention should be paid to Article 288 TEU (formerly Article 249 EC Treaty), which allows for the introduction of measures of ‘soft law’, as its last paragraph states: ‘Recommendations and opinions shall have no binding force’. To formulate the proper balance to be found between the EIR Recast (including its soft law instruments based on its content, such as a ‘protocol’ or an ‘undertaking’), and the first stage of harmonisation with a preventive restructuring framework, Irit Mevorach’s book makes a significant contribution to further such recommendations.  

Irit Mevorach, The Future of Cross-Border Insolvency: Overcoming Biases and Closing Gaps, Oxford University Press 2018. ISBN 9780198782896.

Additional information, see https://global.oup.com/academic/product/the-future-of-cross-border-insolvency-9780198782896?q=mevorach&lang=en&cc=nl#

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 www.bobwessels.nl.

2018-12-doc6 Ian Fletcher International Insolvency Law Moot 2019

The Ian Fletcher International Insolvency Law Moot competition is dedicated to raising the profile of insolvency and restructuring within the university’s curriculum. It aims at encouraging the best and brightest students around the globe to learn about international insolvency law and international commercial litigation. Students will have a chance to engage with their peers, judges and members of international insolvency bodies. By doing so the Fletcher Moot also provides an avenue for academics, judges and a diverse range of insolvency experts to collaborate in mentoring the next generation of lawyers.

Early December 2018 a Leiden Law School team has been selected to participate in the Oral Rounds of the 2019 Fletcher Moot. The written arguments have been presented, the oral arguments will be held in Singapore on Friday – Sunday, 29-31 March 2019. The Leiden team members are Margot Branger, Nastia Grishkova and Louis Honee. They will coached by Gert-Jan Boon, Shuai Guo and Ilya Kokorin, all three PhD students in the area of international company, insolvency and financial law. They were invited by professor Rosalind Mason, Moot Coordinator, QUT School of Law in Brisbane, Australia. QUT collaborates with INSOL International, the International Insolvency Institute (III) and Singapore Management University.

Team and coaches are in full swing of preparing, to have all present for a picture, for rehearsal and thinking about getting sponsors, as travelling for 6 people to Singapore could be rather expensive. The Ian Fletcher International Insolvency Law Moot provides a unique opportunity for students to experience real-world court proceedings before international panels of prestigious judges. My congratulations to all on making it into the next round, and if you can assist in any way, thank you for the willingness to help!

2018-12-doc5 ELI project Business Rescue in Insolvency Law - Slowly closing the curtains

With prof. Stephan Madaus, and assisted by Gert-Jan Boon, LL.M MSc, now a PhD in Leiden, we delivered in September 2017 the ELI Report on Business Rescue in Insolvency. See http://www.bobwessels.nl/blog/2017-09-doc3-eli-business-rescue-report-published/. As from the moment of the spark of the first ideas until now (closing our research files) we worked for 5,5 years. Including members of committees and boards within ELI, the ELI staff, the national correspondents and our Advisory Group, some 100 persons from around 20 jurisdictions have been involved. Stephan and I wrote two or three larger articles after the report's publication in September 2017; we've had until now 387 downloads for the report (on ssrn; downloads from the ELI are not counted); the last 14 months we've been presenting and discussing our report in several places all over Europe, including 5 weeks ago in Lisbon, 2 weeks ago in Leiden, and this week in Vienna, in an event together with members of Working Group V (Insolvency Law) of UNCITRAL. Want to know more? Just type 'rescue' on my blog with as a result 151 sources, around half of them, I think, related to the ELI project. The coming six months Oxford University Press is preparing, with ELI, an over 1000 pages book. New horizons forcast lights on new research projects, new colleagues will join in, new articles and books will be published, fine friendships will evolve in new ones. I will carry the ELI project in my heart as a true joint effort to get the best out of ourselves; we were continuously in a flow, they say today. I will carry it also into future research, especially with regard to the Directive of preventive restucturing (most probably) to come, most visable in my (Dutch) series on Insolvency Law. Thank everyone for this great journey, and if I can assist anyone by taken your future steps, let me hear.