Harmonisation of Insolvency and Restructuring Laws in the EU

The purpose of this text, which consists of papers delivered at the INSOL Europe Academic Forum Annual Conference on 26 and 27 September 2019, is to showcase a number of perspectives on the implementation of the Preventive Restructuring Directive and what this means for EU-wide harmonisation within the sphere of insolvency and restructuring law. Within the overarching theme of the conference, several more focused themes were explored, including the design and implementation of preventive restructuring frameworks pursuant to the new Directive; issues relating to directors duties in the context of debtor-in-possession restructuring procedures; a YANIL perspective on the Preventive Restructuring Directive; the administration of the restructuring process; and a practitioner’s view on the scope and limits of the stay. Contributions from the conference in this book range from an analysis of whether it is likely that the United States will recognise restructuring plans devised under the new Directive; a close look at the potential effectiveness of the Directive in terms of achieving EU policy for its introduction; and a comparative discussion of the impact of the new Directive on directors’ duties and liabilities in the Netherlands, Germany, and the United Kingdom. Innovative features (for Europe), such as the introduction of debtor-in-possession via the Directive; the protection of rescue financing in the restructuring of corporate groups; as well as the complicated interplay of GDPR data protection principles as it relates to the sale of customer data during an insolvency process, also featured. The conference would not have been complete in its theme around the Preventive Restructuring Directive without a discussion and debate about the Absolute and Relative Priority Rules as they appear in Article 11 of the Directive and preference for one rule over the other. In addition, issues of trade credit and new/interim financing as it has been developed under the new Directive weas explored. The forum also provided a comparative discussion of best practices for insolvency practitioners in the context of financial distress resolution as well as the circumstances of mediators in the EU restructuring and insolvency landscape. The forum also provided a presentation updating the progress of a key project on which INSOL Europe is currently partnered, the Judicial Co-Operation Supporting Economic Recovery in Europe (JCOERE) Project, which at the time of the conference was in its ninth month of research out of University College Cork, Ireland (along with the University of Florence and Titu Maiorescu University in Bucharest). The final three papers in this collection have been contributed by three members of YANIL, having presented them at the Inaugural YANIL Conference a day prior to the Academic Forum. The first of these papers questions whether Ireland is in fact a leader in the EU when it comes to restructuring (preventive or otherwise). A detailed exploration of the jurisdiction of annex actions as they relate to Article 6 of the EIR Recast and in the context of recent case law from the CJEU was made along with the final paper, which examines the struggle of striking a balance between employee and creditor protection in the context of pre-packs and the impact of the rules around the transfer of undertakings and the right of employees to transfer along with them