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Blog 2018

2018-02-doc2 Advanced Master programme Law and Finance at Leiden Law School

At Leiden Law School several Advanced Master programmes start again in September 2018. One ofe them is the programme on International Civil and Commercial Law, in which I lectured on matters of international restructuring and insolvency law. Since my retirement the present staff, professor Reinout Vriesendorp and Ilya Kokorin, asked me for some guest lectures. See https://www.universiteitleiden.nl/en/education/study-programmes/master/international-civil-and-commercial-law. This time my focus on a very interesting programme indeed, the full year programme of the Advanced Master on Law & Finance, see https://www.universiteitleiden.nl/en/education/study-programmes/master/law-and-finance, or see https://www.linkedin.com/pulse/advanced-llm-programme-law-finance-call-matthias-haentjens/.
The programme too has quite some output, to wich many international scholars or other financial experts contribute, including a programme of periodically inviting non-Dutch speakers. I was fortunate to work together with the director of this programme, professor Matthias Haentjens. The titles of the examples reflect the subjects lectures, such as Bank Recovery and Resolution – A Conference Book, The Hague: Eleven International Publishing 2014, a large Research Handbook on Crisis Management in the Banking Sector, in the series Research Handbooks on Financial Law, Edward Elgar Publishing, Cheltenham, UK, 2015, and last year with the second edition of Gabriel Moss, Bob Wessels and Matthias Haentjens (eds.), EU Banking and Insurance Insolvency, Oxford University Press, 2nd edition, 2017 (see http://www.bobwessels.nl/blog/2017-04-doc1-eu-banking-and-insurance-insolvency-2nd-ed-2017/) and the books published or forthcoming in the research together with Chinese professors and backed by the Netherlands Academy of Academic Science (KNAW) on New Bank Insolvency Law for China and Europe. Input is also delivered by a Dutch and a Chines PhD researcher, working in the Leiden staff. In 2017 the institute where this all is taking place celebrated its first lustrum, see http://www.bobwessels.nl/blog/2017-04-doc5-first-lustrum-of-hazelhoff-centre-for-financial-law/, and presently my colleague and I are in the final phase of editing a Research Handbook on Cross-border Bank Recovery and Resolution, with contributions on global and regional solutions to banks in distress, rules on corporate governance and risk taking by large banks, issues of law applicable to banks when measures taken must have effect outside the jurisdiction in which they are taken and an overview on cross-border cases (such as Lehman Brothers Treasury) and the way cross-border bank resolution is handled in Japan and China. Law & Finance covers global banking and financial matters, so the Advance Master welcomes candidates from all over the world.

2018-01-12 Bob Wessels Insolvency Law Collection

Since the end of January 2018 the Law Library of the Leiden Law School holds one of the largest collections on insolvency (bankruptcy) law in Europe. A large portion of it contains the private library that I have been building up in over thirty years, since the early 1980s till 2016. From 2007 to 2014 I was a professor of international insolvency law at the University of Leiden. I have donated a large part of my privately held library (around 30 meters of books, reports, etc.) to the Stichting (Foundation) Bob Wessels Insolvency Law Collection. The statutory object of the Foundation is to promote the interest and knowledge of international and comparative restructuring and insolvency law and to maintain and manage the library and to promote worldwide access to it. The Foundation aims among other things, to hold public meetings and lectures, to organise courses, initiating initiatives and publishing and distributing publications. In addition, it strives to make the collection available via easy accessible, openly licensed text and other digital assets that are useful for teaching, learning, and assessing for research purposes. Donations and contributions from third parties will support the Foundation in reaching its goals. For Dutch tax purposes the Foundation is a public benefit institution (in the meaning of Dutch ANBI legislation). Its board members are
Prof. Matthias Haentjens, Professor of Financial Law, Leiden Law School, chair
Prof. Eric Dirix, Leuven, Judge Supreme Court; Professor of Private law, University of Leuven, Belgium
Prof. Ian F. Fletcher, Q.C. (hon.), Em. Professor of International Commercial Law, University College London, United Kingdom
Prof. Stephan Madaus, Professor of Civil Law, Civil Procedure and Insolvency Law, Martin Luther University Halle-Wittenberg, Halle, Germany
Prof. Reinout D. Vriesendorp, Professor of Insolvency Law, Law Leiden Law School, secretary/treasurer.

In turn, the greater part of the collection has been entrusted by the Foundation to the Leiden Law School Library. The latter will act as a prudent custodian, including activities such as conservation, having the collection catalogued, and making it available for consultation and research for the users of the Law School's library. On 26 January 2018 the official opening (symbolical, by un-flagging a show glass) of the insolvency law collection took place, by Law School dean professor Joanna van der Leun and the chairman of the Foundation, professor Matthias Haentjens. With gratitude I was able to say some words of thanks for all the effots made by everyone to have to insolvency law collection now professionaly availabe in one of the top libraries in Europe.
The Foundation can be reached via its secretary/treasurer professor Vriesendorp, r.d.vriesendorp@law.leidenuniv.nl.

2018-01-doc11 Passing away of Professor Hazard

I am saddened by the news that on 11 January Geoffrey C. Hazard, Jr., Emeritus Professor of Law at the University of Pennsylvania Law School, has passed away. He was, among many other things, also a Professor of Law at Yale, the University of Chicago, and the University of California, Berkeley. In the USA he was a leading figure in the fields of civil procedure, judicial administration, and legal ethics. He has also been Director of the American Law Institute (ALI). After he attended one of my lectures, he approached me for becoming a member of ALI. At that time, 2004, he was the champion of a project, that had started under his leadership, in the mid 90s, ALI's Transnational Insolvency project. The results of this project laid the groundwork for what we now know as the UNCITRAL Model Law. Later he was a leading figure in the collaboration of ALI with UNIDROIT on the ALI/UNIDROIT Principles of Transnational Civil Procedure. Professor Hazard introduced me at ALI to work on joint study, commissioned by the ALI and the International Insolvency Institute (III), with the central question: the recommendations in the Transnational Insolvency Project, applying to the USA, Canada and Mexico, can these be recommended all over the world? The study undertaken was conducted over a period of six years, ending in 2012, the Joint Reporters being Ian F. Fletcher (University College London) and myself. In a 300-page supportive report we delivered the ALI-III Global Principles and Guidelines 2012, reinforcing the importance of court-to-court cross-border cooperation in insolvency cases. These are 37 Global Principles for Cooperation in International Insolvency Cases, and 18 Global Guidelines for Court-to-Court Communications in International Insolvency Cases. These ALI-III Global Principles and Guidelines 2012 have been republished in 2017, see http://www.bobwessels.nl/blog/2017-09-doc1-ali-iii-global-principles-and-guidelines-2012/. I was very pleased to see Geoff's thumbs up! These principles and guidelines also have formed a basis for the EU Cross-border insolvency court-to-court cooperation principles, published in 2015. Presently, in Europe again, the European Law Institute (a 'sister' organisation of ALI) has a project ongoing as a cooperative venture of ELI and UNIDROIT. It builds upon the aforementioned ALI/UNIDROIT Principles of Transnational Civil Procedure, and aims at the regional development of those Principles. Geoff Hazard played a foundational role in the past half-century of civil procedure and legal ethics in the USA. Moreover, in Europe, in insolvency law and procedural law we stand on his shoulders. For me he was an important force in law reform efforts, pragmatic, to clarify, modernize, and improve the law. He has been instrumental in my professional development and I thank him for that.
He died at the age of 88. See http://www.legacy.com/obituaries/nytimes/obituary.aspx?pid=187830739

2018-01-doc10 The rule in Gibbs

The 'rule in Gibbs' is not well known on the European continent. In the English insolvency world, however, it’s a rule that can not be overlooked, and receives severe criticism. It goes back to over a century, but recently has kept laywyers in several parts of the world busy. The rule of Gibbs refers to the case of Gibbs & Sons v La Société Industrielle et Commercial des Métuax ((1890) 25 QBD 399). In this case the defendant, a French company, had agreed to buy copper to be delivered in England by the plaintiff. The defendant refused to accept the copper and so was liable in damages to the plaintiff. The defendant was placed in judicial liquidation in France and it was assumed that as a matter of French law, the defendant was discharged from its liability in damages. However, the English court held that French law was irrelevant because it was ‘… not a law of the country to which the contract belongs, or one by which the contracting parties can be taken to have agreed to be bound; it is the law of another country by which they have not agreed to be bound.’ Fletcher (I reviewed the latest edition of his book at http://www.bobwessels.nl/blog/2017-06-doc3-fifth-edition-fletcher-the-law-of-insolvency/) is extremely offended as English private international law in this respect ‘… is insular and xenophobic in the extreme, and plainly guilty of maintaining dual standards with regard to the principle of universality of bankruptcy’. Other parts of Fletcher’s opinions are cited, last week, by Hildyard J in Bakhshiyeva v Sberbank of Russia & Ors [2018] EWHC 59 (Ch). The High Court maintains to apply the Gibbs rule, however the judgment is an interesting read for its fundamental discussion, with references to quite some other cases and sources, ending with the conclusion that the introduction of a ‘new Model Law’ concerning the recognition and enforcement of insolvency related judgement may solve the problem. I would add, indeed, as the European Insolvency Regulation (Recast) applies to foreign discharges presented as separate judgments and to discharge judgments closely related to insolvency proceedings, see Article 1(1) and 32(1) EIR 2015 respectively.

 

2018-01-doc9 USA Shutdown. Also for US courts?

Two hours ago (Dutch time) in the USA, Congress did not pass an appropriations bill to continue funding the federal government beyond 19 January. The budget deadline has passed; there will be a government 'shutdown'. After Christmas 2017, again holidays for bankruptcy lawyers? Not in California: the Bankruptcy Court for the Central District of California announced that the federal judiciary will use other funds to allow federal courts to remain open. During that time, scheduled hearings will be held as usual, filings will be accepted, and hours of operation, availability of systems, and other services will continue as normal. The Court will remain open for approximately three weeks through 9 February 2018. In case of any change of circumstances, the Court will provide another public notice. So also judges have to worry about keeping up their pants, as we say in the Netherlands. See http://www.cacb.uscourts.gov/sites/cacb/files/documents/news/PN%2018-002.pdf