Set‐off under the European insolvency regulation (and English law)

This paper addresses critically the meaning and effect of the set‐off provisions in the European Insolvency Regulation. The Regulation sets out the authority of EU Member States to open insolvency proceedings and provides that, subject to exceptions, the law of the State that opens insolvency proceedings shall apply to those proceedings. Setoff is one such exception for the opening of insolvency proceedings does not affect the rights of creditors to demand the set‐off of their claims against the insolvent debtor. Set‐off is intended to perform a guarantee type function for creditor claims. Nevertheless, the Regulation does not define what is meant by set‐off nor clarify whether set‐off rights under the law of a third country (such as English law) may be relied upon. The paper provides valuable clarification and critical analysis.     

Jurisdiction concerning annex actions in the context of the insolvency and Brussels Ibis regulations

The legislation of the European Union has addressed the private international law aspects of civil and commercial matters and those of insolvency cases separately. While the Brussels Ibis Regulation (and its predecessors) focuses on “classic” civil of commercial cases, insolvency proceedings are subject to the (recast) Insolvency Regulation. However, the close interference between the two related areas of law—commercial and insolvency—results in a category of cases that are commercial and contentious in nature, and so they would tend to gravitate towards the Brussels regime, but yet they are so closely connected to the insolvency proceedings that justifies a special approach. This article focuses on the question of international jurisdiction regarding these “annex actions” in the context of the EU law. It will attempt to explore the historical roots of the current provisions and the evolution of both the European legislation and the relevant case law. The examination of this progression provides a better understanding of the current legislation and answers some questions apparently left open in the recast Insolvency Regulation.     

Cross-border insolvency law in India: Are the principles of comity of courts and inherent common law jurisdiction relevant?

Deliberations are in the final stages for enacting a cross-border insolvency law in India based on the UNCITRAL Model Law on Cross Border Insolvency 1997 (‘Model Law’). The cross-border insolvency regime in India will provide an avenue for recognising foreign insolvency proceedings in India. Although it is a matter of time before India adopts the Model Law, it is important to examine whether there remains an independent basis in addition to the Model Law for recognising and providing assistance to cross-border insolvency proceedings in India. This is crucial on account of the following reasons: first, the Model Law does not provide that it is the exclusive pathway for foreign creditors to seek remedies under domestic law. The Model Law, as reflected in Article 7, was intended by its drafters to be an additional gateway to those provided under local laws. The proposed Indian law in Article 5 of Draft Part Z of the Insolvency and Bankruptcy Code 2016 also does not depart expressly from this principle. Second, there may be instances where neither the ‘Centre of Main Interests’ nor an establishment of a corporate debtor is situated in India; therefore, assistance and cooperation in respect of such cross-border insolvency proceeding can only be based on the inherent common law jurisdiction, if available. Third, the cross-border insolvency framework in India will be premised on the requirement for reciprocity and, therefore, countries that do not meet the reciprocity requirement may find it beneficial if such an independent basis for recognition exists in India. This article argues that foreign representatives should be encouraged to explore the possibility of seeking assistance from the commercial courts in India under the common law principles governing cross-border insolvency and that the courts in India should be open to this possibility.     

The effectiveness and efficiency of corporate insolvency law—part two

Little empirical research has been done in the Netherlands (or internationally) into the effect of corporate insolvency proceedings. The Dutch legislature has made several attempts in the past decades to revise the current Dutch Bankruptcy Act (Faillissementswet) of 1893, while almost nothing is known about the effectiveness and efficiency of the Dutch corporate insolvency law. I have studied the effectiveness of the current Dutch insolvency law and of European Directive 2001/23/EC which is incorporated in this law, on the basis of theoretical and large‐scale empirical research. The study concerned all 4167 of the corporate insolvencies that ended in 2004. In the first part of this Article (International Insolvency Review, Volume 17, 3, Winter 2008, pp. 189–209), the research results showed that the Dutch Bankruptcy Act achieved the goals set on it only to a limited degree and that the informal restructuring procedure is of great social importance. In this second part, I concentrate on the conditions imposed by European Directive 2001/23/EC on the European national legislatures to protect employees' rights: automatic transfer of employment contracts in the event of transfers as part of insolvency proceedings, together with measures to prevent misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for in this European Directive. The study shows that, in the Netherlands, not applying automatic transfer of employment contracts when an undertaking or business is transferred as part of an insolvency proceeding does not result in large‐scale misuse of insolvency law. It appears that automatic transfer of employment contracts outside insolvency proceedings can actually impede the informal restructuring of financially unsound companies. These surprising results are interesting for corporate insolvency proceedings worldwide. Copyright © 2009 John Wiley & Sons, Ltd.     

The regime for circulation of judgements under the EC regulation on insolvency proceedings

The regime for recognition and enforcement of judgements under the EC Regulation 1346/00 on insolvency proceedings raises several issues due to gaps in its provisions (Chapter II). This article analyses these rules and suggests solutions to its principal shortcomings particularly focusing on the prohibition against reviewing decisions as to their merits and conflicts between judgements opening main insolvency proceedings in different member states. This analysis draws on the European Court of Justice's interpretation of the 1968 Brussels Convention in preliminary rulings, which is a valuable tool for dealing with problems concerning recognition and enforcement of judgements as the Regulation is based on a similar framework. Copyright © 2006 John Wiley & Sons, Ltd.     

Universalism and the recognition of group proceedings under the UNCITRAL Model Law in Montenegro

Among the most topical insolvency issues in 2017 was the Croatian “Lex Agrokor”—a controversial “tailor‐made” law providing a unique restructuring opportunity for the largest Croatian conglomerate, the parent company of which was otherwise facing bankruptcy. Soon after the “extraordinary administration procedure” began, the appointed administrator started filing motions for the recognition of the alleged group insolvency as foreign insolvency proceedings in a number of neighbouring and other European countries, most of which have adopted the UNCITRAL Model Law on Cross‐Border Insolvency. It was an attempt to save the conglomerate's property from being seized in a disorderly fashion by various secured creditors, most noticeably, the largest Russian financial institution Sberbank, which contested these motions with varying success. This article, however, does not present an effort to comprehensively analyse the ongoing legal battle but rather adopts a broader approach to examining the Lex Agrokor to establish grounds for more general conclusions. More precisely, the purpose of this article is twofold. First, to offer strong arguments that, from the standpoint of typical insolvency legislation based on the Model Law, such as that of Montenegro, both the actual and future group proceedings initiated under the Lex Agrokor should fail to meet recognition requirements. Second, based on the preceding case study, to offer conclusions on how to further promote universal approach regarding group insolvencies by emphasizing exactly what the national laws regulating group insolvency should not feature so as to have the proceedings introduced therewith recognized in countries adopting the Model Law.     

‘Bankruptcy tourism’ under the EC regulation on insolvency proceedings: A view from England and Wales

This article provides an account of the emergent phenomenon of ‘bankruptcy tourism’—forum shopping by debtors for favourable personal insolvency law—within the EU and with particular reference to England and Wales. After outlining the structural features of the European legal framework that make forum shopping for personal insolvency law possible, including the EC Regulation on Insolvency Proceedings and explaining why England and Wales in particular has proved to be an attractive ‘tourist’ destination, the article charts how the official receivers and the courts in England and Wales have sought to manage the influx of foreign bankruptcies in terms of legal principle and process drawing on two reported cases, Eichler and Mitterfellner. It will be seen that the institutional response in England and Wales has been twofold. First, the ‘problem’ of forum shopping debtors has been framed as a problem of policing the line between genuine and fictional relocations. Secondly, there are signs that the procedural onus on debtors to evidence their claim to English jurisdiction before a bankruptcy order is made has been increased, a move that can be interpreted as a form of institutional resistance designed to raise the barrier to entry. Having sought to illuminate the problems, costs and inconvenience associated with forum shopping from a practitioner standpoint, we explore the ‘good’ versus ‘bad’ forum shopping question and consider the scope for reform of the EC Regulation. Adopting a creditor perspective, we conclude provisionally that the Regulation could usefully be reformed to limit the scope for insolvent debtors to switch their COMI in anticipation of filing for bankruptcy. Copyright © 2010 John Wiley & Sons, Ltd.     

Perpetuating Uncertainty: The Anti‐Deprivation Principle and Contractual Rights in the Post‐Lehman World

This article considers the anti‐deprivation principle under English insolvency law, an issue which has received significant attention in the courts over the past couple of years, culminating most recently in the Supreme Court decision in Belmont Park Investments Pty Limited v BNY Corporate Trustee Services Limited [2011] UKSC 38. The article begins by observing that the evolution of the anti‐deprivation principle has resulted in the precise nature and scope of the rule becoming confused, particularly when applied to property comprising contractual rights. In response to this confusion, the article outlines a three‐pronged framework for the anti‐deprivation principle, derived from an empirical study of the case law up to and including Belmont. First, it is necessary to identify the asset that is being deprived. This involves two subsidiary questions, namely the extent to which individual contractual rights may constitute property capable of being deprived and determining whether specific contractual provisions either define the scope of the right or constitute dealing with the right. The second element involves determining whether there has been a deprivation. In the context of contractual rights, this includes any action that results in the insolvent company being deprived of the benefit of the right, whether that is by way of transfer, extinguishment or modification of the right. Finally, consideration must be given to whether there are any defences which apply to validate that deprivation. Four such defences are postulated — where the insolvent company receives fair value for the deprivation; where the deprivation is an unavoidable consequence of some other valid action; where the asset deprived is the quid pro quo for some other unperformed obligation of the insolvent company; and where the arrangements were entered into in good faith for a bona fide commercial purpose and without any intention to avoid the insolvency law. Copyright © 2011 John Wiley & Sons, Ltd.     

Cross‐Border Debt Adjustment – Open Questions in European Insolvency Proceedings

At present, 18 European Union member states have some form of legislation on adjustment of the debts of a private individual. Only half of these debt adjustment proceedings are mentioned in Annex A of the European Insolvency Regulation (EIR) and therefore fall within the scope of it. As most of the debt adjustment proceedings are not included in the scope of the Brussels I Regulation, there is a regulatory gap in the European insolvency proceedings with unpleasant impacts on the free movement of labour. Fortunately, changes are coming, in the form of the EIR reform. In order to bring debt adjustment within the scope of the EIR, the Commission proposes to loosen the prerequisite concerning the legal effects, which the opening of the proceedings has on the debtor. Regarding the jurisdiction to open main proceedings, the Commission proposes that COMI (the debtor's centre of main interests) would be the place of habitual residence. The open question is, whether residency requires a certain continuity or stability. This issue is discussed in the paper taking into account recent Court of Justice of the European Union case law. The challenge of the EIR reform is that only provisions on scope and jurisdiction have been modified as to debt adjustment. One may ask, e.g. when the prerequisites concerning the opening of secondary proceedings are fulfilled if the debtor is a private individual. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd     

The transaction avoidance regime in the recast European insolvency regulation: Limits and prospects

In the last decade, transaction avoidance in insolvency law has been in the limelight of the academic discussions. In particular, the scholarship has highlighted how the European Insolvency Regulation gives rise to several private international law issues. Moreover, the scholarship has explored solutions to these issues and proposed to harmonise the regime of transaction avoidance at European Union level. However, the recent legislative developments on the cross‐border insolvency law seem resistant to the proposed harmonisation. This article focuses on the transaction avoidance regime in the Recast European Insolvency Regulation. In particular, it seeks to evaluate whether the Recast has solved the issues arising within the original European Insolvency Regulation in relation to transaction avoidance. Secondly, it questions the suitability of the private international law approach to transaction avoidance in cross‐border insolvency within the European Union framework. The research suggests that the efforts required to the private international law framework to deal efficiently with transaction avoidance make the harmonisation of the regime of transaction avoidance at the European Union level a more appealing option.     

Dutch corporate insolvency law: On the brink of a revolution?

The Dutch Bankruptcy Code (DBC) has not changed fundamentally over the more than 110 years of its existence, at least as far as corporate insolvency proceedings are concerned. On 1 November 2007, however, a committee of insolvency experts presented a draft for an entirely new code to the Ministry of Justice. Whether this new code will gain the force of law and whether this will happen within the near future remains uncertain but the proposals will in any event dominate discussions on insolvency law in the Netherlands for the foreseeable future. The main goal behind many of the proposals is improving the ability to successfully restructure companies that experience financial difficulties. To this end the proposals include various measures that would weaken the position of (secured) creditors. The proposals include widening the scope of the cooling-off period during which secured creditors are unable to enforce their security by granting the administrator a right of use of assets subject to security interests. The ability to rely on early termination clauses in contracts is also reduced during the cooling-off period. The position of secured creditors is further weakened by a proposal to grant the right to sell assets that are subject to security interests to the administrator if he continues the business. Under the current bankruptcy code, secured creditors can largely ignore insolvency proceedings, there is no general stay on enforcement and, early termination clauses in contracts are generally thought to be valid and enforceable during insolvency proceedings. Although banks have already argued that weakening the position of secured creditors will limit the ability to restructure companies, it seems safe to assume that the relatively comfortable position that secured creditors currently enjoy during insolvency proceedings in the Netherlands will be under fire due to the proposals for a new bankruptcy code. Copyright © 2008 John Wiley & Sons, Ltd.     

The legal responses of Canada and Poland to international bankruptcy and insolvency with a focus on cross‐border insolvency law

This article discusses and compares the respective legal responses of Canada and Poland to international bankruptcy and insolvency with a focus on cross‐border insolvency law. Specifically, the issues addressed herein concern jurisdiction, recognition of foreign bankruptcy proceedings, and co‐operation with foreign courts and foreign administrators. Notwithstanding some real differences between Canadian and Polish international insolvency proceedings, both legal regimes may be compared, since both countries have adopted many of the principles contained in the UNICTRAL Model Law on Cross‐Border Insolvency. The major impetus behind the changes established by Canada in its bankruptcy and insolvency laws have been the economic realities produced by the North American Free Trade Agreement. Likewise, Poland's accession to the European Union (EU) has been a major catalyst for revising the Polish Insolvency and Restructuring Act. Part II of the said act is entirely devoted to international insolvencies. However, following Poland's adherence to the EU, those sections of the Polish Insolvency and Restructuring Act that deal with international or cross‐border insolvencies will be severely limited or constrained in scope. The article indicates that Poland, the EU and Canada are taking the necessary steps to meet the needs of debtors who would like to restructure in an international setting. Copyright © 2006 John Wiley & Sons, Ltd.     

Groups of companies in the Recast European Insolvency Regulation: Around and about the “group”

Regulation (EU) 2015/848 (Recast European Insolvency Regulation/Recast EIR) contains a set of articles dedicated to the insolvency proceedings relative to members of groups of companies. No substantial consolidation or any procedural nature is envisaged. Article 2(13) of Regulation 2015/848 clarifies that, for the purposes of the same, a “group of companies” must be understood as “a parent undertaking and all its subsidiary undertakings.” However, many doubts arise when one goes deeper into that definition. The author deals with some of those problems and gives some suggestions to overcome them.     

Chinese cross-border insolvency laws: Recent developments and international implications

The present Chinese insolvency law is under the process of legislative reform, and one focus point among legislators and academics is cross-border issues. China is slowly opening up its market to foreign insolvency proceedings, as demonstrated by the 2021 Chinese Mainland-Hong Kong cross-border insolvency cooperation mechanism. This first attempt, however, is only available in three trial cities in the Mainland and does not apply to jurisdictions other than Hong Kong. Nevertheless, it does not undermine the intention of the Mainland to advance its cross-border insolvency framework. Based on a thorough examination of Chinese legislation and judicial practices, this article submits that China would be willing to accept international standards and be a more active player in international insolvencies.     

Conflicts of interest,intra‐group financing and procedural coordination of group insolvencies

Modern insolvency law instruments recognise the specificity of enterprise group insolvencies, premised on the existence of close operational and financial links between group members. It is widely accepted that maximisation of insolvency estate value and procedural efficiency depend on coordination of insolvency proceedings opened with respect to group entities. Such coordination is prescribed in the European Insolvency Regulation (recast), the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Enterprise Group Insolvency and the recently reformed German insolvency law. Yet in insolvency, group members retain their own insolvency estates and pools of creditors. This is based on the traditional company law principle of entity shielding. Active communication and cooperation between insolvency practitioners and courts do not sit well with the separate (atomistic) nature of insolvency proceedings, as well as different and oftentimes conflicting interests of creditors in such proceedings. As a result, communication and cooperation may be restricted in a situation of conflicts of interest. This article explores how in the context of group distress the risks arising from conflicts of interest can be controlled and mitigated, while ensuring efficient cross‐border cooperation and communication to the maximum extent possible. It analyses three cutting‐edge coordination mechanisms, namely (a) cross‐border insolvency agreements or protocols, (b) special (group coordination and planning) proceedings and (c) the appointment of a single insolvency practitioner. It concludes that both the likelihood and significance of conflicts of interest correlate with the degree of procedural coordination. Therefore, conflict mitigation tools and strategies need to be tailor‐made and targeted at a specific level and coordination mechanism.     

The European Insolvency Regulation and the UNCITRAL Model Law on Cross‐Border Insolvency

This article compares the Recast European Insolvency Regulation of 2015 with the UNCITRAL Model Law on Cross‐Border Insolvency of 1997, focussed on their scope of application, international jurisdiction and the coordination of main and secondary proceedings. The scopes of both catalogues of norms and their rules on coordination of main and secondary insolvency proceedings reflect one another. However, the Recast EIR makes a significantly greater contribution to the unification of law and is also more fully differentiated and more precise, even if this comes at a price, namely, limited flexibility. The UNCITRAL Model Law made an important contribution to the harmonisation of international insolvency law but requires now modernisation. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

China's Enterprise Bankruptcy Law (EBL 2006): cross‐border perspectives

With China's new Enterprise Bankruptcy Law (‘EBL 2006’) having come into effect on 1 June 2007, a critical issue arises as to the extent to which Article 5, as a cross‐border provision, will strengthen creditors' rights across jurisdictions. In this paper attention will be paid in particular to how the Chinese People's Court is likely to exercise its discretion to grant recognition to a foreign court ruling, and vice versa. The paper will start with a brief introduction to the circumstances under which Article 5 came into being. The evolution of China's cross‐border insolvency practices will be examined through an analysis of an inbound case of B&T (2002) as well as an outbound one of GITIC (2005). In spite of the fact that China has not adopted the UNCITRAL Model Law, essential factors deemed necessary to be considered by China's court and its counterparts in US and UK are to be highlighted throughout the paper. Although the effect of Article 5 remains to be seen, it will be critically analysed focusing on some controversial issues. Copyright © 2009 John Wiley & Sons, Ltd.     

The impact of constitutional property law on insolvency law in South Africa

It is common for insolvency legislation to interfere with the property rights of debtors, creditors and third parties in pursuit of its purpose to provide an orderly and fair resolution to insolvency‐related problems. However, the South African property clause, Section 25 of the Constitution, prohibits arbitrary interferences with vested property interests. In light of this, this article focuses on the application of Section 25 to insolvency law in South Africa. The question is whether interferences with property rights in terms of insolvency legislation qualify as deprivations of property for constitutional purposes and, if so, whether they comply with the relevant validity requirements. This article investigates this question by explaining the interaction between insolvency law and constitutional law in general, followed by a closer look at the application and operation of the property clause in particular. Thereafter, three examples from case law are discussed to illustrate the role of constitutional property law in evaluating the effects of insolvency legislation in South Africa. The conclusion is drawn that, as long as the relevant requirements are met, the norms underlying the property clause do not hinder the development and implementation of legitimate and necessary insolvency procedures that could impact on vested property rights.     

Cross-border insolvency law of China: An empirical analysis and proposal based on the insolvency cooperation mechanism between the Chinese mainland and Hong Kong

In the context of the national strategy of the construction of the Guangdong-Hong Kong-Macao Greater Bay Area, the first institutional breakthrough in cross-border insolvency cooperation between the Chinese Mainland and Hong Kong was achieved on 14 May 2021, and the first case of recognition and assistance in insolvency proceedings in Hong Kong, Re Samson Paper Co Ltd., emerged in judicial practice in December 2021. The judicial practice of Samson not only successfully verifies the great significance of the Record of Meeting and the Opinion for institutional ice-breaking of cross-border insolvency cooperation in the Chinese Mainland, but also reflects the practical effects and legislative issues of the above documents on the mechanism of insolvency cooperation between two areas. In view of the problems reflected by the practice of Re Samson Paper Co Ltd. and existing in the legislation, this paper puts forward specific proposals for the cross-border insolvency cooperation between the Chinese Mainland and Hong Kong, including abolishing the precondition of reciprocity, strengthening exchanges, and cooperation between the two areas on parallel bankruptcy issues, and supplementing the coordination of parallel bankruptcy procedures for cross-border insolvency. It also proposes domestic legislation on cross-border insolvency recognition and assistance in China in a point-by-point manner, so as to achieve the establishment of a sound cross-border insolvency cooperation mechanism in line with the international community.     

Reconsidering Procedural Consolidation for Multinational Corporate Groups in the Context of the Recast European Insolvency Regulation

Procedural consolidation, as a solution to the rescue of insolvent multinational corporate groups (‘MCGs’), is said to be able to preserve group value for creditors. This article explores the desirability of procedural consolidation in the EU in the light of theories of corporate rescue law, cross‐border insolvency law, multinational enterprises and relevant EU cases with reference to the European Insolvency Regulation. It argues that, based on current cross‐border insolvency rules in the EU, there is an inherent difficulty for procedural consolidation in balancing the goal of preservation of group value and the goal of certainty. The article also considers the new ‘group procedural coordination proceedings’ offered by the Recast European Insolvency Regulation and argues that it may help to supplement the gap left by the procedural consolidation in the EU. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.