Over four years ago, after nearly 40 years of preparation, the European Union Regulation on Insolvency Proceedings entered into force. Within the development of insolvency law in Europe 31 May 2002 symbolises a historic day. The EU Insolvency Regulations sets forth a framework for cross border insolvency within the European Union, especially providing rules for the international jurisdiction of a court in a Member State for the opening of insolvency proceedings, the (automatic) recognition of these proceedings and the powers of the ‘liquidator’ in the other Member States, and important choice of law provisions. Since mid 2002 further developments have taken place. Ten mainly central and eastern European states have joined the EU and therefore are bound by the Regulation. Some 150 court cases have been published dealing with all kind of issues relating to the Regulation. A hot debated issue is ‘COMI’, the acronym of the debtor’s centre of main interest, which forms the judicial basis for opening insolvency proceedings. Several battles between jurisdictions have been taken place which involves cases that also have had quite some attention in the USA, including BRAC Rent-A-Car, Daisytek, Collins & Aikman and Eurofood IFSC Ltd/Parmalat. Although the Regulation only applies to insolvency proceedings where the centre of the debtor’s main interest is located in the European Community, and therefore is territorial in its scope, the Regulation will have its effects on US corporations with economic activities or operations in the EU. The American Bankruptcy Institute (ABI) has recognized that it is of enormous importance for businesses, banks and bankruptcy practitioners, involved in international dealings and international aspects of bankruptcy, to be aware of the key issues of the EU Insolvency Regulation. This was, in short, the aim of the first edition of a ‘European Union regulation on Insolvency Proceedings. An Introductory Analysis’, published by ABI in 2003. Recently I revised and updated the text, in which the same approach has been taken again in the preparation of the second edition. It is evident that in the publication the text of the Insolvency Regulation and its Annexes contain the three groups of changes that have been made since 2002. I have included references to the two cases relating to the interpretation of the Regulation that have been decided by the European Court of Justice in January 2006 (Suzanne Staubitz-Schreiber) and May 2006 (Eurofood/Parmalat). Also included are two forms drawn up by the European Commission to be used for this purpose or to serve as a model for the liquidators’ invitation to foreign creditors to lodge a claim and the creditor’s statement of lodging its claim, both in the meaning of Article 42. Finally, I have included a concise bibliography for those readers that are looking for more detailed information and analysis. In the attached document the draft text of the first (out of six) chapter can be found.2006-10-doc6 ABI - Chapter 1 INTRODUCTION.pdf The book will be available through www.abiworld.org.
[NEW BOOK: SPECIFIC CONTRACTS] In september 2006 is verschenen nr. 6 in de Studiereeks Burgerlijk recht, getiteld 'Bijzondere overeenkomsten'. Het is door een tiental auteurs geschreven primair voor het master-onderwijs en staat onder redactie van mijzelf en Mr A.J. Verheij. In de derde week van september is het aangekondigd als boek van de week door Boekhandel Jongbloed.
IS YUKOS WELCOME IN THE NETHERLANDS? Two recent judgments of the District Court in Amsterdam (dated 11 August and 17 August 2006) demonstrate the way the principle of territoriality of insolvency proceedings works in the Netherlands. The case demonstrates too the interrelationship between Russian, American and Dutch jurisdictions in the saga of OAO Yukos Oil Company, a company having its registered office in Moscow which has been established and is organised under the laws of the Russian Federation. The attached notes are based on a presentation made during a conference of the American Bankruptcy Institute in London, September 8, 2006. 2009-09-doc1
TWENTY SUGGESTIONS FOR A MAKEOVER OF THE EU INSOLVENCY REGULATION The EU Insolvency Regulation has been in force for over four years now. The balance appears to be positive however the handling of cross-border insolvencies within the Community could certainly be improved. A list of 20 recommendations follows below. The list is by no means exhaustive. The recommendations are presented with the intention of providing food for thought for the evaluation process pursuant to Article 46 InsReg. 2006-09-doc4
During a well attended Annual Conference of INSOL Europe in Bucharest (Romania) the Public Draft September 2006 of the “European Communication and Cooperation Guidelines For Cross-border Insolvency” were discussed. The draft of the Guidelines have been produced by prof. Miguel Virgós (Spain) and myself. See for a short introduction the attached document Eurofenix Autumn 2006, page 7. Eurofenix Autumn Page 7.pdf The aforementioned Public Draft is attached too. See 2006-10-doc1. 2006-10-doc1 PublicDraftGuidelines September 2006.pdf Saturday September 30 we presented the Guidelines and, based on a hypothetical, the audience was able to vote on some 15 practical questions. The audience consisted of around 200 insolvency practitioners, representing 20 jurisdictions (mainly European). Some of the outcomes of the poll are presented in the attached 2006-10-doc2. 2006-10-doc2 Co Co discussion.pdf