Recently I received a book (232 pages), titled “Cross-Border Insolvency Proceedings”, with the subtitle “Policies and Directives in the European Union”. The publication presents in its core an analysis of the effectiveness of European Union cross-border insolvency proceedings. Evidently, its accent is on the development of cross-border insolvency proceedings established in the Insolvency Regulation ((EU) 2015/848), which came into effect in 2017, and how these proceedings contribute to the general goals of the EU internal market. Its author is Remigius Jokubauskas, associate professor of insolvency law at Mykolas Romeris University in Vilnius, Lithuania. He, personally, gave me the book in my home town Dordrecht.
After 2 “setting the scene” chapters (Landscape of Cross-Border Insolvency Law in Europe, and: Development of European Union Insolvency Law), a treatment follows with the obvious themes covered in the Regulation, such as ‘Jurisdiction’ (I would say ‘International jurisdiction’ as specific category next to national jurisdiction provisions), main and secondary proceedings, related (or: annex) actions, applicable law, recognition and enforcement of judgments, cooperation between IPs and courts and group insolvency.
What makes the book somewhat different from existing short introductions is that it is mainly based on a detailed reading of the many opinions issued by Advocates General in numerous cases decided by the CJEU. In this way, specific subjects are well presented, such as avoidance of abusive forum shopping, the interpretation of ‘centre of main interest’ (COMI), moving COMI and the complex relationship between Brussels I and the Insolvency Regulation. The rules regarding applicable law are mainly supported by judgments of the CJEU itself.
The author also dives into rather unexplored areas, such as the exercise of creditors’ rights in cross-border insolvency cases and the tracing and recovery of assets. Here it is striking that the author uses parts of UNCITRAL’s work (the Model Law, Guide to Enactment and Interpretation, Practice Guide etc.) quite freely as support for his digressions. In addition, his approach to procedural questions through the lens of the European Court of Human Rights (ECHR) is illuminating. A welcome chapter is the section on rescue of viable business and the question of how such a ‘restructuring procedure’ fits into the system of the Insolvency Regulation. He rightly emphasises that various parts of preventive restructuring may not fall under the scope of the Insolvency Regulation.
Finally, the author discusses the application of the Preventive Restructuring and Insolvency Directive ((EU) 2019/1023) in relation to the rescue of viable companies and the discharge of debts for insolvent entrepreneurs. His conclusions contain several items for the European Commission’s wish-list of 2027 (the announced date of 27 July 2027, reviewing any necessary adaptations to the Insolvency Regulation). Jokubauskas, in addition, is not convinced by the harmonisation of substantive rules of national bankruptcy law. He favours, if I do understand him correctly, the existing differences between Member States, that ‘… may increase the effectiveness of insolvency proceedings, since different national rules could provide effective tool to tackle insolvency (bankruptcy) problems’. This does not seem very supportive for companies selling their products and services in different member states. It is to be hoped that the author will be able to further develop this view in a second edition.
This book will be of interest to students, but also insolvency practitioners and courts as well as those interested in the wider area of EU law and private international law.
Remigijus Jokubauskas, Cross-Border Insolvency Proceedings Policies and Directives in the European Union
Routledge, 2024
ISBN 9781032720456