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Blog 2018

2018-02-doc8 Int'l cases at Paris Court

The Netherlands Commercial Court is still in statu nascendi ('launching mid 2018', the site says, see https://www.rechtspraak.nl/English/NCC). There are still some pitfalls, see http://www.bobwessels.nl/blog/2015-12-doc8-in-2017-netherlands-commercial-court-opens-for-large-disputes/. In the meanwhile, thanks to a London counsel of Haynes Boone, we know that a new International Chamber within the Paris Court of Appeal Paris just opened for business, see http://www.haynesboone.com/alerts/international-chamber-of-paris-court-of-appeal

2018-02-doc7 University of Girona's Evidential Reasoning World Congress June 2018

The Chair of Legal Culture of the University of Girona (Spain), professor Jordi Ferrer, is organizing the Evidential Legal Reasoning World Congress. For the organisation of the Chair, see http://catedradeculturajuridica.com/EN/938/paginas/index.html. The congress will be the second congress in the series “Filosofía y Derecho” (Philosophy and Law) from the Spanish publisher Marcial Pons. It will be held in Girona, 6-8 June 2018. During the event presentations will be made by 18 speakers from 4 continents, all of them leading international specialists in the field of evidentiary reasoning in the judicial process. Their presence makes this congress a world reference in the subject of analysis, of special appeal to any jurist, theoretician or legal practitioner. Please consult the conference newsletter, which also contains instructions on how to participate in the call for papers/posters, at http://catedradeculturajuridica.com/EN/1312/congress/ii-conference-of-the-series-filosofia-y-derecho-evidential-legal-reasoning-world-congress.html

2018-02-doc6 Brexit and the future of cross-border insolvency

CIGI (Centre for International Governance Innovation) and BIICL (British Institute of International and Comparative Law) recently published a paper in the series Brexit: The International Legal Implications | Paper No. 17 — February 2018, under the title 'Cross-border Insolvencies after Brexit: Views from the United Kingdom and Continental Europe'. The paper addresses the main problems arising from the UK's decision to leave the European Union with regard to insolvency proceedings. Issues discussed are the modes of recognition of foreign insolvency proceedings under British law (Section 426 of the Insolvency Act 1986, the UNCITRAL Model Law and the UK variant of the CBIR, covering not fully consistent case law and the British 'joker card' of Common Law) and the likely effect of Brexit (based on 5 variables in the relation UK-EU), the impact of Brexit on forum and law shopping, the reform proposal for British workout procedures and the use of British workout procedures by EU companies. Its authors are Howard P. Morris, Gabriel Moss, Federico M. Mucciarelli and Christoph G. Paulus. The views presented are based on talks the authors gave during a conference held in May 2017.

Brexit is around the corner and it is time to discuss and decide on the best way forward, including the alternatives available for a legal institutional instrument and options for insolvency related procedural and substantial solutions. One hears several times that such a solution should be that the EU would adopt the UNCITRAL Model Law.

Six years ago INSOL Europe has advocated to start with leveling up the Model Law to a Regulation to be adopted by the EU. In a report presented in 2012 Ian Fletcher and I have rejected that idea. Both the nature and the original effect of the Model Law (a template for individual countries, not economic regions), as well as the fact that certain matters already have been included in national legislation of Member States (be they followers of the Model Law or having drafted their own systems) in our opinion would only justify the use of a Directive as the medium for bringing about harmonisation of the laws of the Member States in relation to insolvency proceedings originating in non-EU states (as the situation is post-Brexit). See  http://www.verenigingburgerlijkrecht.nl/images/preadvies2012.pdf, para. 183ff.
A 'Model Law' solution - if preferred - must, first, be tested against the present Insolvency Regulation (Recast) (EIR 2015), and, second, take into account new concepts that have not found a place in the Model Law, the text of which now is over 20 years old.
Matters to take care of relate to (i) inconsistency with the EIR 2015 (e.g. non-equal treatment of tax claims), (ii) the uncertain exclusion of certain proceedings relating to financial institutions (reference is made to a CIGI-BIICL paper (nr. 11 in the same series, written by Dorothy Livingston), (iii) a well-thought through provision regarding the relation between the EIR, the 'Model Law' and existing international treaties and agreements, and (iv) the inclusion of an interpretation provision which is not unproblematic in its application, given the purposive, sometimes autonomous interpretation which has to be given to EU-matters, as well as the fact that the originally intended 'unity' of terms (such as the bothersome 'COMI') only a few years after enactments have resulted in 'diversity' in several jurisdictions all over the world (note that the Cross-border paper signals aligning apporaches in this matter).
A 'Model Law' must be modernised. I have addressed this issue a few monthe ago, suggesting that a 'Model Law' also should include rules on applicable law (the ones contained in the Legislative Guide are not nuanced enough), provisions on data protection, group insolvency provisions, registration of insolvency decisions, the main insolvency practitioner’s power to give a unilateral undertaking (in order to prevent opening of proceedings in another state), professional and ethical rules for insolvency practitioners or rules for recognition of for instance decisions on director’s disqualification. See http://www.bobwessels.nl/blog/2017-11-doc7-some-remarks-on-the-model-law/.
Let's not confuse the dress rehearsal for the real thing. Put in place the institutional instrument first, with a framework of some bare key provisions. The hot potato (jurisdiction of the CJEU) should in this tier 1 instrument be a given. This part also could also cover other third countries. Then work jointly further in a EU-UK context to fill the topics mentioned. In addition, one of these could be the creation of a specific EU-UK court.  

2018-02-doc5 Bankr. S.D.N.Y. of December 7, 2017, on the Dutch Oi Brasil Cooperatief UA

On December 4, 2017, the U.S. Bankruptcy Court for the Southern District of New York had to decide about a petition to recognise Dutch insolvency proceedings launched by an affiliate of Brazilian telecoms company Oi. The petition was brought by the insolvency trustee of Oi Brasil Holdings Coöperatief U.A. (Coop), a Netherlands incorporated subsidiary of a Brazilian parent company Oi S.A. The petition contains the request to recognise these proceedings in the Netherlands as a foreign main proceeding, and to terminate or modify the court’s prior recognition under Chapter 15 U.S. Bankruptcy Code of Brazilian bankruptcy proceedings in relation to Oi. These proceedings include the Dutch Coop. Aurelius Capital Management, and other creditors in the international bondholder committee, supported the petition. Together these parties are called ‘Movants’. The relief requested is opposed by the debtors that previously received recognition of the Brazilian bankruptcy proceedings in the New York Court. These debtors are joined by a separate group of Oi Group creditors (the ‘Steering Committee’). These parties are called Objectors. The Court decides on the parties’ competing views of the applicable legal standard for evaluating the Dutch petition and Coop’s centre of main interest (COMI). The Movants urge the Court to conduct a de novo review of Coop’s COMI under Section 1517(a) U.S. Bankruptcy Code as of the date this petition was filed. On the other hand, the Objectors advocate reviewing this case under Section 1517(d) U.S. Bankruptcy Code, which looks at whether a prior COMI determination should be terminated or modified because it was incorrect in the first instance or based on events that occurred after that recognition.
The Court finds that Section 1517(d) provides the appropriate standard.
Subsequently, the Court considers whether the doctrines of judicial estoppel and comity apply in this case: should the Court conduct its own determination of COMI under Chapter 15 or should it defer to prior rulings made by the Dutch courts. The Court concludes that judicial estoppel and comity should not apply here, one reason being the differences between the legal question before it and the one decided by the Dutch courts.
Finally, the Court evaluates the two prongs of Section 1517(d) for terminating or modifying a prior recognition. The first of these prongs directs the Court to determine whether the grounds for granting recognition were lacking. The Court examines the record before the Court at the time it recognized Coop’s COMI as Brazil. The Court determines that it should not modify or terminate recognition under the first prong in Section 1517(d). The second prong in Section 1517(d) examines whether the grounds of recognition have ceased to exist. The Court examines whether events after the prior recognition have changed Coop’s COMI from Brazil to the Netherlands. The Court concludes that this second prong has not been met and considers the economic reality of the special purpose nature of Coop, the expectations of creditors, the limitations on the Dutch Insolvency Trustee presented by the proceedings in Brazil, and allegations of impropriety against creditor hedge fund Aurelius. Aurelius’ actions are inconsistent with the trend in international insolvency law in the light of present draft rules from the UNCITRAL working group studying cross border insolvencies of multinational enterprise groups of the kind at issue in this case. Its actions here are at odds with the focus of this draft legislation on cooperation, value maximization and enterprise preservation.
In a 120 pages decision, the Court’s findings of fact and conclusions of law are presented. I have commented the case in the Dutch case law review JOR 2018/57, in English. The commentary is attached.

2018-02-doc4 Ian Fletcher Moot Court Competition

The Ian Fletcher International Insolvency Law Moot aims to encourage the best and brightest students around the globe to learn about international insolvency law and international commercial litigation. The yearly competition, which recently started, poses a hypothetical problem to challenge students' appellate advocacy skills. There is one qualifying written round, and the oral round finals were held in the beautiful and vibrant city of Sydney at the University of Sydney Law School Moot Courtroom. The competition is dedicated to raising the profile of insolvency and restructuring within the university curriculum. Students will have a chance to engage with their peers, judges and members of international insolvency bodies. 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. Professor Rosalind Mason (QUT Law Faculty, Brisbane) informed me that the 2018 Fletcher Moot was a great success. The names of the final 8 teams and the award winners can be found on: www.qut.edu.au/law/about/news-events/international-insolvency-law-moot/for-teams/awards. I see teams from Canada, Australia, Singapore. Are European continental universities up to the standard to enter into this global competition?