Since 2010 'Interaction between legal systems' is a major research programme thoughout all departments of the Leiden Law School. It is based on the idea that law-making is no longer only the prerogative of national legislators and courts. Law-making and law enforcement are increasingly taking place on various levels: in a global context, in an EU context, on a national level and in a private law framework (like codes of conduct). In insolvency law for instance the latter has led to principles and guidelines for cross-border cooperation between insolvency practitioners and between insolvency courts in insolvency proceedings pending in several states (in cases such as Nortel network and Lehman Brothers) and to guidelines for professional attitude and ethical behaviour for Insolvency Office Holders. The central question formulated by the School is that these various levels influence each other, sometimes directly, on the basis of a hierarchical relation, but often indirectly, for example through the development of trade customs or through an exchange of legal experience or good practices. The continuous interaction and co-operation between the various levels of law-making and jurisdiction affect all areas of law and is highly complicated. With its reseach programme Leiden Law School is at the forefront of these developments and its rearchers are committed to understand and solve the problems and questions resulting from the interaction between various levels of jurisdiction, both on a theoretical as at a pratical. See for a 3-day international conference, with room for discussions and reflection the announcment for a gathering 21-23 January 2015, Leiden Law School, Leiden University, The Netherlands. invitation-and-call-for-blogs
In February 2014, a team of researchers, under the coordination of Professor Michael Veder (Radboud University of Nijmegen) and myself, was invited to contribute to a large research project jointly led by the World Bank and the Banca d’Italia. The project focuses on the conflicts between insolvency law and company law in general and on the legal position of shareholders in particular. On the 15th of September, a National report on these subjects under Dutch law was send to the both the World Bank and the Banca d’Italia. The Dutch report addresses, next to some general questions concerning national insolvency and company law, four main issues from a national perspective, (i) the respective powers of the board of a company and the shareholders’ meeting in insolvency proceedings; (ii) the substantive and procedural rights of shareholders in a company subject to insolvency proceedings; (iii) the possibility of using the old /same corporate entity as a vehicle for the reorganisation of the company; and (iv) the possibility of the shareholders to retain a participation in the reorganized company, and, if they are allowed to retain a participation, the allocation of value between creditors and shareholders. For a summary of the main results, see the memo of one of the report’s co-authors Tom Dijkhuizen (Leiden Law School). Dutch Report - Worldbank study on conflicts between insolvency law and company law
Since ten years in the European Court of Human Rights (ECtHR) a case is pending concerning the tax and enforcement proceedings brought in 2004 against the Russian oil company, OAO Neftyanaya Kompaniya Yukos (Yukos), which eventually led to its liquidation in 2007. In a judgment on the merits, of 20 September 2011, the Court found (i) a violation of Article 6 §§ 1 and 3 (b) (right to a fair trial) of the European Convention on Human Rights (ECHR) concerning the tax assessment proceedings for the year 2000 against Yukos, because it had had insufficient time to prepare its case before the lower courts, and (ii) violations of Article 1 of Protocol No. 1 to the Convention (protection of property). On this point the Court held that the assessment of the penalties relating to 2000 and the doubling of the penalties for 2001 had been unlawful, and that in the enforcement proceedings against Yukos the Russian authorities had failed to strike a fair balance between the legitimate aim of these proceedings and the measures employed (in particular by being inflexible regarding the pace of the proceedings and obliging Yukos to pay excessive fees). See my comments in European Human Rights Cases, posted on my blog, see Archive 2011-11-doc6. At that time the question of just satisfaction (Article 41 ECHR) was not ready for decision. In a Chamber judgment in the case of Oao Neftyanaya Kompaniya Yukos v. Russia, adopted on 24 June 2014 (which is not final), the ECtHR ruled on the question of the application of Article 41. The Court held unanimously the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Yukos. The Court, furthermore, held, by a majority: - that Russia is to pay the shareholders of Yukos as they had stood at the time of the company’s liquidation in 2007 and, if applicable, their legal successors and heirs 1,866,104,634 euros (EUR) in respect of pecuniary damage; and, - that Russia must produce, in co-operation with the Council of Europe’s Committee of Ministers, within six months from the date on which the judgment became final, a comprehensive plan for distribution of the award of just satisfaction. - that Russia is to pay EUR 300,000 in respect of costs and expenses to the Yukos International Foundation. See the judgment hereJudgment Yukos v. Russia concerning just satisfaction
Free Judicial Education and discusson sessions on cross-border coordination in insolvency proceedings will take place on 3-4 November (Riga) and 1-2 December (Amsterdam) 2014. Cooperation and communication between judges is necessary to facilitate efficient cross-border insolvency proceedings. To this end professors Bob Wessels (Leiden Law School) and Paul Omar (Nottingham Law School) have developed ‘EU Cross-Border Insolvency Court-to-Court Cooperation Principles and Guidelines’. This ‘JudgeCo Project’ is sponsored by the European Commission as well as the International Insolvency Institute (III). See for the related documents this blog, 2014-08-doc3. After presentations and discussions with academics, practitioners and judges on several occasions (e.g. Insol Europe, Annual Congress, October 2013; International Bar Association, Annual Conference May 2014) as of November 2014 free training sessions take place to familiarise judges from across Europe with these Principles and Guidelines. The JudgeCo Principles and Guidelines provide clear guidance for more efficient coordination of insolvency proceedings pending in two or more Member States. The training sessions aim to familiarise judges with the JudgeCo Principles and Guidelines and give them the opportunity to comment on their usefulness in practice. Also, it allows judges to enlarge their European network and to discuss other pending issues with colleagues. Free Judicial Training Sessions Two more training sessions will take place in Riga (3-4 November, to be confirmed), and Amsterdam (1-2 December). All judges deciding on matters of insolvency are offered the chance to participate in a two-day interactive training. Once accepted as a participant, travel and reasonable accommodation costs are covered by the project. The programme of the training sessions is tentatively scheduled to start around noon at day one. The system of the European Insolvency Regulation, and its expected changes regarding the role of the courts, as well as the JudgeCo Principles and Guidelines will then be discussed. The day will conclude with a dinner. On day two workshops will take place to actively discuss and experience the working of the JudgeCo Priniciples and Guidelines. The training session will finish around 13:00 CET. For the training sessions, venues are chosen that can be reached easily. For more information on and registration for the Judicial Training Sessions visit: www.tri-leiden.eu/projects/judgeco-project, or contact the organisers via: firstname.lastname@example.org.
The European Parliament’s JURI Committee on Upcoming issues of EU Law had organised (24 September) a workshop on topics on the future of EU Law. Future meaning between now and 2019. For those interested in 'European' insolvency law I would recommend reading the papers on the application of EU Law (Wolfgang Heusel), the implementation of EU law (Marta Ballesteros) and European private international law (Xandra Kramer), regrettably only with limited attention for insolvencyl law. For the report, see Upcoming issues of EU Law - IPOL_IDA(2014)509987_EN