Welcome / Blog Archive / Book Review / 2020-12-doc4 New books on European Insolvency Regulation (Recast) 2015/848

2020-12-doc4 New books on European Insolvency Regulation (Recast) 2015/848

Notes accompanying bobwessels vlogs (on air 23 December 2020 and on YouTube https://youtu.be/PCbih6pC1KM).

First generation commentaries

Reinhard Bork and Renato Mangano, European Cross-border Insolvency Law, Oxford University Press 2016

Gabriel Moss, Ian F. Fletcher and Stuart Isaacs (eds.), The EU Regulation on Insolvency Proceedings, 3rd. ed. Oxford University Press 2016

Both reviewed by me, see European Company Law (no. 4, 2016), go to

https://bobwessels.nl/blog/2016-10-doc7-book-reviews-eir-recast/

Also for 2016: Reinhard Bork and Kristin van Zwieten (eds.), Commentary on The European Insolvency Regulation, Oxford University Press 2016. ISBN 978 0 19 872728 6

My own book: Bob Wessels, International Insolvency Law Part II. European Insolvency Law (Wessels Insolvency Law Volume X), Deventer: Wolters Kluwer, 4th ed., 2017 (Wessels Part II 2017). ISBN 9 789013 145021.

Second wave:

Bob Wessels and Ilya Kokorin, European Union Regulation on Insolvency Proceedings: An Introductory Analysis (Fourth Edition), published by American Bankruptcy Institute, Va., USA, 2018. ISBN 978 1 944516 35 2. Focused on non-EU market.

Brinkmann, Moritz, ed., European Insolvency Regulation. Article-by-Article Commentary, C.H. Beck / Hart / Nomos 2019. ISBN 978 3 406 69858 3 (C.H. Beck)

Bělohlávek Alexander J., EU and International Insolvency Proceedings. Regulation (EU) 2015/848 on insolvency proceedings, The Hague, 2020, by Lex Lata B.V. Two volumes.

ISBN 978-90-829824-3-5

Reinhard Bork and Kristin van Zwieten, 2nd ed. forthcoming first half year 2022.

Now ‘Brinkmann’ and ‘Bělohlávek’ compared

Brinkmann (professor Uni of Bonn, Germany) and Bělohlávek (attorney in Prague, prof. at Uni’s of Ostrava and Brno, Czech Rep.) aim at judges, practitioners and scholars, but the way these readers are addressed varies.

Authors. Brinkmann brings together 15 German authors,  Bělohlávek is the sole author.

Both books do not have the advantage of the first generation publications, gathering many authors with different national and legal backgrounds.

Commentary. Both Moss et al and Bork / Mangano contained some seven or eight chapters explaining certain themes. Moss et al also provides a more focused commentary but, where it starts with a commentary to the EIR which then is followed by a commentary of the EIR Recast, mainly on those provisions which have been amended or are fully new compared to the EIR 2000, so there is some back and forth looking for connected pages.

Brinkmann and Bělohlávek are straightforward article-by-article commentaries.

Bork/Mangano did not, where Moss did contain the text of the ‘new’ Insolvency Regulation (which provides a better overview when studying) and the Virgós-Schmit Report.

Per article structure. Example art. 8 (Third parties’ rights in rem)

Brinkmann is rather direct: text, recitals, specific bibliography (2 sources), CJEU case law (3 cases); German BGH case law (3 cases); 125-131 (6 pages, 31 footnotes)

Bělohlávek is more broad: text; text of its nearly similar provision in EIR 2000, detailed reference to recitals, but als to EU Law (Rome I Regulation and some international conventions); CJEU and ECJ case law (5, including cases of indirect relevance); Case law of member states (AUT; DEU; FRA; HUN; 2 x LUX and Malta). 365-395 (30 pages, 127 footnotes), including 4 pages of literature references, including Italian, Czech, German, Austrian.

Where Bělohlávek is 3 times the size of Brinkmann that should not surprise, for instance 20 articles related to group insolvency: 90 pages in Brinkmann, 230 in Bělohlávek

Regarding Brinkmann:

No list of CJEU cases

Does refer to CoCo Guidelines and JudgeCo Guidelines

Refers to Wessels 2012, but as to new concepts in EIR 2015: Art. 36 (‘undertaking’) (32 pages from Laukemann) does not, but Skauradzun and Spahlinger do refer to Wessels Part II 2017.

Regarding Bělohlávek:

Does have an extended list of CJEU cases

Does not refer to CoCo Guidelines and only to JudgeCo Guidelines in the part on groups.

Does not refer to Part II, Moss et al, Bork/Van Zwieten but does to Bork/Mangano

Forms used on the basis of art. 88 EIR 2015.

National language/translation remarks, e.g. ‘establishment’, ‘protocol’, not for ‘affairs’ in DIP art. 2(3)

Copious references are made to literature and other sources

Very broad lists of literature, but here the final year seems to be 2016, and 2018 for German language literature. Some references to literature seem rather unfortunate (dated)

Sources, especially to the case‐law of CJEU and first instance cases of various member states, however only covering period including 2017 with 1 or 2 case from 2018.

Great indexes on case law and references of articles in commentaries on other articles.

In all: legal practice (insolvency practitioners, accountants, judges, academics) will have their source of guidance in practice, both in their own form and style. They represent the first wave in second generation books on the EIR 2015, with several others to be expected in 2021 and onwards. A welcome addition to the slowly growing body of EU cross-border insolvency law literature concerning the EIR Recast, with ‘Brinkmann’ more in the hands of practitioners and ‘Bělohlávek’ more on the desks of scholars, lawyers with complicated appeal cases and legislators.

Note: ‘Brinkmann’ and Bělohlávek 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.