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2020-09-doc1 Strengthening role of judges in restructuring

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The role of judges in restructuring and insolvency proceedings has been of particular interest to the EU legislator in recent years. It is in matters of insolvency and restructuring that a court and its judges have to fulfil a set of five criteria: (a) a general understanding of business management (so as not to assume managerial tasks), (b) understanding what is needed to effectively enforce the rights of both secured and unsecured creditors outside of insolvency proceedings (as, for instance, a stay may influence pre‐insolvency enforcement rights), (c), preferably, be a specialist in commercial matters, (d) be impartial and independent, and (e) where practical, have specialised insolvency expertise. Where businesses are operating across borders, the latter criterion includes cross‐border knowhow.During the 20th century, several steps have been developed with the aim of improving the environment within which these criteria can be met. Courts themselves may wish to improve their level of quality and effectiveness. In this contribution, several examples are discussed that have been put in place or will emerge soon that can enhance the court’s professional standing and its performance, in (international) insolvency and restructuring, as a “good” judge. These developments may assist Member States in improving their judicial frameworks, as well as (associations of) members of courts or judicial and administrative authorities dealing with procedures concerning insolvency and restructuring in developing the necessary expertise for their responsibilities as formulated in the EU Preventive Restructuring Directive. Moreover, the duty of cross‐border cooperation between courts in EU law underpins the discussion and the importance of cooperation as is underscored by the adoption of this Directive. See for my extensive article on the subject the next issue of International Insolvency Review

https://onlinelibrary.wiley.com/doi/full/10.1002/iir.1393?campaign=wolearlyview