http://www.bobwessels.nl/blog/2019-04-doc2-pre-insolvency-proceedings/Back to the book. Tollenaar has a clear, as well as a tenacious style of writing, with which he develops, consistent with his basic notions, his own framework re pre-insolvency proceedings. He, I know, generally agrees with the new EU Restructuring Directive’s restructuring procedure. However, he has voiced its unaligned characteristics and basic flaws. European politicians (as far as they read academic studies) have not been convinced by Tollenaar’s high-level framework for a pre-insolvency plan proceeding. Politicians’ (in charge of ‘making law’), when coming to a legislative result that faces businesses in difficulties, will take into account less rational or calculable considerations, such as protecting jobs, ensuring economic market stability or prevention of fraud. In my experience these desiderata often cloud any rational debate even when it would be focused on the debtor’s circumstances – as in nearly all legislations. My prediction is that the same would take place when political debate will start about a systems based on the author’s proposition of a fundamental right of any creditor to enforce and secure payment in cash. I did not got the impression that the author demonstrated to be aware of this reality.
Where Tollenaar in his last chapter formulates six suggestions for further research (a few less than in his PhD) and acknowledges that his framework (as also the results of any implementation of the Directive, I would argue) necessitates further research in areas as securities law, corporate law and tax law, the topic will remain on the European and the Member States’ agendas. A very readable, thought-provoking and clearly written study makes the book worth examining and presents sophisticated choices for legislators, academics and practitioners dealing with restructuring.
Nicolaes Tollenaar, Pre-Insolvency Proceedings. A Normative Foundation and Framework, Oxford University Press 2019. ISBN 978-0-19-879992-4
Book information via: www.oup.com.
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.
The subject of a compulsory settlement outside of formal insolvency proceedings has been the focus of attention in Europe and several of its Member States, including the Netherlands, for quite some time. In the preface of his book ‘Pre-insolvency proceedings. A Normative foundation and Framework’ (OUP, 2019), the author, Nicolaes Tollenaar, signals this strong development in Europe with focusing on business rescue. Since the end of March 2019 (finalisation of the Restructuring Directive) we know for certain that Member States within two years have to fulfil the duty to introduce for a new generation of pre-insolvency restructuring proceedings with the aim of rescuing viable businesses and preventing formal insolvency proceedings or amend their existing rules. Tollenaar, a partner at Dutch law firm Resor and a familiar face at many international conferences, presents his view on the whole matter.
The book itself is a translation of his PhD, obtained the end of 2016 at the University of Groningen. It leaves out, however, the chapter on the Dutch bill regarding the Continuity of Enterprises II (‘WCO II’). It may have been the wish of its international publisher or the choice of the author itself, as that chapter then had to be bought into line with the WCO II-replacement bill, presented in September 2017, regarding Private Homologation Agreement for the Prevention of Bankruptcy (‘WHOA’). The whole Dutch legislative process which already lasts for seven years is awkward and sticky.
His study is well organised, with – after introduction of his work – chapters on the objective and the justification of insolvency law and pre-insolvency proceedings respectively, plan governance (proposing a ‘hybrid model’ with contractual and judicial elements) and initial observations on valuation and its accompanying terminology. It is rather apparent from the title of his book that the author also deals with US Chapter 11 (including the American Bankruptcy Institute 2014 proposals for change) and the UK’s Scheme of arrangement. This all leads to the centre piece of his book, Tollenaar’s Framework for a pre-Insolvency Plan Procedure.
In his opinion, justification for his ideas are three preconditions that a restructuring system should meet: (i) the debtor must be in a state of insolvency or pre-insolvency, (ii) a restructuring can only be imposed on creditors if a majority of them have agreed, or if the creditors who do not agree to it, have the option of receiving a cash amount equivalent to the amount they expected in the event of liquidation, and (iii) if the majority of creditors did not agree with another distribution, the added value that the restructuring aims to achieve (the ‘reorganization value’) is distributed according to the rank of the creditors. An agreement, laying this all down, must above all be fast, cheap and efficient, should respect these preconditions and must contain sufficient guarantees to protect the rights of creditors.
The author then elaborates on who can propose such an agreement, which also should serve the interests of the creditors and not per se as such the continuity of the debtor, the binding force of such an agreement, who may vote (also shareholders) and the organisation of classes. Disagreements between all involved as well as homologation of the agreement is in the hands of the court, specifically assessing the formal aspects of the conclusion of the agreement, for example regarding the question: has the decision-making been taken place properly and careful and have the relevant parties been involved in the process to come to an agreement.
Tollenaar’s framework reflect clearly the preconditions developed and to focus on speed and to achieve deal certainty. Judicial interference should be kept to a minimum, and there should not be an appeal against the approval decision. It includes the absence of an ex lege (automatic) stay and a limitation of the possibilities for the debtor’s counterparty to change, suspend or terminate obligations under existing agreements as a result of the plan, without there being any reasonable grounds for this. This refers to so-called ipso facto or change of control provisions, which can come into effect by offering a plan of an agreement or the further execution of it.
The book, the preface says, is based on a translation of his PhD. Going through it, however, I note that on several occasions the author has updated his research to November 2018. The book does not mention or discuss more recent post-2016 ideas, expressed for instance by prof. Stephan Madaus and myself, in the Instrument of the European Law Institute – Rescue of Business in Insolvency Law, available at https://www.europeanlawinstitute.eu/projects-publications/completed-projects/insolvency/, see also http://www.bobwessels.nl/blog/2017-09-doc3-eli-business-rescue-report-published/ or those in the Codire report https://www.codire.eu/wp-content/uploads/2018/11/Stanghellini-Mokal-Paulus-Tirado-Best-practices-in-European-restructuring.-Contractualised-distress-resolution-in-the-shadow-of-the-law-2018-1.pdf), although it seems fair to say that finalising his text and the publication of the latter report may have coincided. It may be the case, that these studies do not align with the approach fundamentally taken by the author, ie development of a framework based on the notion of the creditor’s collective enforcement rights, which evidently includes the non-homogenous group of creditors, including their priorities and pressures.
More important, I think, is the rather poor development of matters of contract law. The study, for instance, does not go into the rules that apply to negotiating and renegotiating (obligations in) a contract or these that apply to hardship or force majeur. Freedom of contract, or better: freedom to negotiate, is applied in all Member States, though freedom is not always fully free. For instance, the Italian Civil Code provides that during contract negotiations parties have a mutual duty of good faith conduct and in the Netherlands such a duty may follow from case law. In other countries there may be a duty for the parties to negotiate, e.g. based on a rule regarding ‘hardship’ or: force majeur (in France since 2016). Such kind of rules may also follow from soft law, such as the Principles for European Contract Law or the UNIDROIT Principles of International Commercial Contracts. Now it seems fair (further study should be made) to presume, that financial distress and/or operating in circumstances close to insolvency generally will not be regarded as ‘hardship’. Such a risk is to be borne by the party affected by it, the debtor. However, in an individual contractual context any ‘plan’ rules may indirectly influence the background within which (re)negotiations take place.
A second issue in this regard is that a ‘plan’ is an agreement or a contract of a special type, namely a multi-party contract. In such a case, may a debtor individually agree with one creditor or a group of them? What is the interrelationship between the earlier contract (between one creditor and the debtor) and the obligation to perform in good faith in concluding a new contract? Is there for instance a duty to hear the other party and/or for this party to (at least) take part in restructuring negotiations? What are the consequences for such a multiparty contract as a ‘plan’ for the rules on good faith or misrepresentation? It seems evident, however, that a multi-party plan will naturally be influenced by the restructuring and insolvency laws to which the debtor may become subject. Parties will negotiate restructuring terms ‘… in the shadow of insolvency law’. This all means, as Madaus and I suggested in the study mentioned, that parties will negotiate their position against the backdrop of the possibility of these insolvency proceedings being opened and with regard to their interests and their entitlements in them. In these contracts they may ‘borrow’ tools available in formal proceedings, such as an inter-creditor agreement or an ad-hoc standstill agreement, because as such, formal restructuring and insolvency proceedings, in as far as they are efficient and promote the interests involved with the continuation of viable businesses, can promote restructuring within a contractual setting. To conclude matters for now: in the near future I think national rules for contracts will certainly be influenced by the provisions in the EU Restructuring Directive. It’s unfortunate that the study discussed here missed the chance to further develop this area.
Back to the book. Tollenaar has a clear, as well as a tenacious style of writing, with which he develops, consistent with his basic notions, his own framework re pre-insolvency proceedings. He, I know, generally agrees with the new EU Restructuring Directive’s restructuring procedure. However, he has voiced its unaligned characteristics and basic flaws. European politicians (as far as they read academic studies
Money makes the world 90 ‘round, Liza Minnelli sang in the movie Cabaret in 1973. An even greater gift has come to financial lawyers, at least that’s what Simon Gleeson writes in the preface of his book The legal Concept of Money (OUP, 2018). Gleeson is a partner at Clifford Chance London, and the gift mentioned is the creation of virtual currency. In this clear and accessible book, the author is looking for answers how to treat such virtual currencies, while underway learning more about the money as it exists in today’s world.
In the Netherlands, as in the UK, the applicable banking and civil laws leave room for payment in money types, either physical or virtual, that do not derive their existence from the State. Examples are money issued by private individuals (e.g. soccer stadiums or holiday parks) that is tolerated by the State, although these means of payment are issued by a factual authority other than the State. The monetary means of money are determined by the law of the country of the currency in question (lex monetae). Court cases re private money in the Netherlands, however, are scarce. Courts of first instance in the Netherlands have decided that bitcoins are not ‘money’ in the meaning of legal Dutch tender and are not tolerated by the State. In an insolvency case (Koinz Trading) for the court in Amsterdam, early 2018, it was decided that an obligation to pay in bitcoins is regarded as a verifiable claim within the meaning of the Dutch Bankruptcy Act.
Gleeson’s book analyses the challenge of how money (including coins, notes, credit, and virtual currency) should be defined from both a legal and an economic perspective. During his journey he introduces elements of the laws of Australia, Canada, Ireland, New Zealand and the US. He re-examines money in its fundamental characteristics in this context. That brought the author to study Roman Law and to quasi-philosophical considerations, such as ‘Does Money ‘Exist’?'. The positive answer is the result of the identification of the role it plays in various transactions and to what extent, for example, cryptocurrencies and quasi-money are interchangeable with, analogous to, or different from traditional monetary systems. Evidently, rather civil law types of questions pass on, such as virtual currency as property or as a subject of a security right. The emphasis, however, is on the role of money in the banking system and exploring how various currencies can be used as claims on financial institutions. Moreover, rather economical observations are taken into account when examining whether the systemic stability of the industry is threatened by non-traditional currency forms. In all, the book sheds light on the many intricacies of the subject the world cannot do without and is a vital contribution to the understanding money in its legal context.
Simon Gleeson, The Legal Concept of Money, Oxford University Press 2018. ISBN 978-0-19-882639-2
Book information via: www.oup.com.
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.
In September last year I reported about my research into the bankruptcy (cessio bonorum) of Rembrandt. In the Netherlands, Rembrandt is hot as this year it is 350 years that he passed away. Also abroad there is interest and I was interviewed last year for a BBC programme. See http://www.bobwessels.nl/blog/2018-09-doc3-the-bankruptcy-of-rembrandt-interview-bbc/. Rembrandt (1606-1669) lived from 1606 till around 1631 in Leiden and the rest of his life in Amsterdam. His wife Saskia died in 1642, which was also the year for presenting his famous Night Watch (Nachtwacht). I just heard that the programma now has been fully edited (by Matchlight Ltd) and will be on TV as Looking for Rembrandt. It will broadcast in the UK on BBC Four on 9th April at 9pm, with episodes 2 and 3 weekly after that. My interview appears in the third and final episode, which makes sense as Rembrandt went bankrupt in 1956 (being 50 years of age). I was also informed that Looking for Rembrandt is due to broadcast in the Netherlands on NPO soon afterwards, likely to be in May. I am excited to see the whole series to get an idea of the tone and of course get impressions of Rembrandt's whole life. Travelling through the master's 17th century, do we get to understand his legal dealings better? That's the query for my research.
In our recent publication 'Cross-Border Cooperation and Communication: How to Comply with Data Protection Rules in Matters of Insolvency and Restructuring', in: 16 International Corporate Rescue 2019, 98ff (published by Chase Cambria Publishing, www.chasecambria.com), Ilya Kokorin and I conclude in the following way (leaving out the footnotes):
"Insolvency practitioners – Codes of conduct
Insolvency practitioners, when processing (collecting, recording, storing, using, disclosing or transmitting) personal data and in particular special categories of personal data, should be acquainted with the GDPR and fully comply with it. Failure to do so may trigger large fines of up to EUR 20 million (Article 83(5) GDPR). Compliance with the rules and principles of data protection ensures processing that is lawful, fair and transparent, limited in purpose and scope, accurate, carried out for only as long as necessary, secure, confidential and accountable (Article 5 GDPR). Recitals 167 and 168 GDPR confer specific powers on the EC to ensure uniform conditions for the implementation of the GDPR. Recital 167 suggests that in that context, the EC should consider specific measures for micro, small and medium-sized enterprises. Recital 168 provides that an examination procedure should be used for the adoption of implementing acts on standard contractual clauses between controllers and processors and between processors; codes of conduct; technical standards and mechanisms for certification; the adequate level of protection afforded by a third country, a territory or a specified sector within that third country, or an international organisation; standard protection clauses; formats and procedures for the exchange of information by electronic means between controllers, processors and supervisory authorities for binding corporate rules; mutual assistance; and arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board.
Related to this long list, Article 40 GDPR (with 11 subparagraphs) foresees the development of codes of conduct. The Member States, the supervisory authorities, the European Data Protection Board and the EC shall encourage ‘the drawing up of codes of conduct intended to contribute to the proper application of this Regulation, taking account of the specific features of the various processing sectors and the specific needs of micro, small and medium-sized enterprises’. Article 40(2) GDPR calls for associations and other bodies representing categories of controllers or processors. They may prepare codes of conduct, or amend or extend such codes, for the purpose of specifying the application of the GDPR. In essence, codes of conduct are similar to practical guides providing easily understandable interpretation of the abstract rules of the GDPR. In the world of restructuring and insolvency, national associations of turnaround managers, IPs, accountants and insolvency lawyers, as well as representative bodies, such as INSOL Europe should step forward. Data protection is certainly worth the effort and will play even bigger role in the future, with the full functioning of national insolvency registers and the establishment of a centralised search engine via the European e-Justice portal in mid-2019. Capital structures of companies in the 21st century will be starkly different from those of the past century. Once driven by hard assets, such as real estate, natural resources and machinery, modern businesses become highly dependent and valued on the basis of intangible assets – claims, licenses, know-how and goodwill. Increased value of data (e.g. customers’ databases) in debtors’ insolvency estates together with the expansive process of digitisation and data collection (big data) bring data protection issues to the forefront of legal and insolvency practice."