Reforming The European Insolvency Regulation: A Legal And Policy Perspective

Abstract

This paper will critically evaluate the proposals for reform of the European Insolvency Regulation-regulation 1346/2000-advanced by the European Commission. 1 While criticised by some commentators as unsatisfactory, the Regulation is widely understood to work in practice. 2 The Commission proposals have been described as 'modest' 3 and it is fair to say that they amount to a 'service' rather than a complete overhaul of the Regulation. 4 The proposals will be considered under the following heads (1) General Philosophy; (2) Extension of the Regulation to cover pre-insolvency procedures; (3) Jurisdiction to open insolvency proceedings; (4) Coordination of main and secondary proceedings; (5) Groups of Companies; (6) Applicable law; (7) Publicity and improving the position of creditors.

Harmonising insolvency law in the EU: New thoughts on old ideas in the wake of the COVID‐19 pandemic

“…"overblown and far divorced from the quite modest changes proposed in the revised Insolvency Regulation." 123 As stated by McCormack: "[w]hile the modern tendency may be to hype everything and to herald eagerly rafts of new initiatives, this approach sows the seed of disillusionment and disappointed expectations." 124 On the other hand, the harmonisation discourse has also been, at times, too timid.…”

Applying Social Psychology Theories to the Challenges of Harmonising Insolvency Law in the European Union

“…51 This is striking in Regulation 2015/848 where very few changes have been made to the structure of its predecessor, or even its wording. 52 In fact, the entire framework of the Regulation is similar to the framework of Regulation 1346/2000 53 and several provisions are carbon copies of prior provisions contained in Regulation 1346/2000, as if cut and pasted. 54 Therefore, even if a harmonised framework provides important benefits, a bias towards the status quo and bounds on willpower can impede harmonisation initiatives where changes from the reference point appear unattractive to Member States.…”

“…97 As stated by Professor Gerard McCormack, "[w]hile the modern tendency may be to hype everything and to herald eagerly rafts of new initiatives, this approach sows the seed of dillusionment and disappointed expectations." 98 It is therefore important that the EU find a balance between its rhetoric and the necessity and content of its harmonisation measures.…”

What is in a Name? Group Coordination or Consolidation Plan-What is Allowed Under the EIR Recast?

“…However, procedural consolidation in the traditional sense is sometimes distinguished from procedural coordination or cooperation. 15 Also, these concepts are thought to be part of a 'continuum of international cooperation' that stretches from recognition and cooperation via procedural coordination and procedural consolidation to substantive consolidation. 16 I will nevertheless use the broad interpretation of the term procedural consolidation, holding it to include the complete joint administrative handling of cases pending before a single court, but also cases involving, for example agreements between insolvency practitioners on combined notices to creditors or joint or coordinated hearings and creditor meetings.…”