Report 2022-2 on Cross-Border Effects in European Preventive Restructuring
The independent think tank Conference on European Restructuring and Insolvency Law (CERIL) has published its latest Statement and Report 2022-2 on Cross-Border Effects in European Preventive Restructuring. As EU Member States implement the EU Preventive Restructuring Directive (2019/1023), CERIL has identified and assessed the benefits and shortcomings of applying the European Insolvency Regulation 2015 (EIR 2015) to govern the cross-border effects of proceedings in national preventive restructuring frameworks. In the absence of an adequate framework for these new preventive restructuring proceedings, the CERIL Report and Statement formulate recommendations to the EU and national legislators.
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A post by guest bloggers Eric Blomme and Cécile Odeurs (Simmons & Simmons)
The COVID-19 pandemic has put the rescue of struggling but viable businesses front of the agenda. The initial response of the Belgian government and legislator was a moratorium on enforcement measures and bankruptcy petitions. Such moratorium can however not be a structural solution in the long term, and expired on 31 January 2021.
The attention then shifted to the improvement of the existing legal framework. Fortunately, Belgium already benefits from a pre-bankruptcy moratorium procedure designed to rescue struggling businesses (the “judicial reorganisation”). Although this procedure is well designed, it does suffer one key drawback: its public nature. In light of cultural and other factors, the opening of such public procedure often leads to a loss of confidence from suppliers and customers and triggers further loss of value.
In this context, on 11 March 2021, the Belgian Chamber of Representatives approved a law modifying the Belgian insolvency code (the “Pre-Pack Law“). The Pre-Pack Law will shortly be published in the Belgian State Gazette and enter into effect. The Pre-Pack Law will introduce, among other measures, a non-public pre-pack reorganisation. The key features of this pre-pack reorganisation are as follows:
Continue reading “Belgium introduces pre-pack reorganisation”
The message of the post last week on this blog by Professor R.J. de Weijs, A.L. Jonkers and M. Malakotipour of the University of Amsterdam has been replicated by the authors in a Letter to the EP, with a supporting letter by Professor Douglas Baird of The University of Chicago.
Professor Bob Wessels of Leiden has replied to their arguments on his blog.
The draft Directive is up for vote on 27 March 2019.
A post by guest bloggers prof. dr. R.J. de Weijs, A.L. Jonkers LLM and M. Malakotipour LLB (University Amsterdam)
On March 26, 2019 the European Parliament will vote on the Preventive Restructuring Framework.
The initial draft Directive from 2016 contained a rule providing the basic protection that shareholders of a financially distressed and reorganized company could not hold on to any value unless the creditors by majority vote consented thereto. Such a rule is in force in US and German law and is referred to as an Absolute Priority Rule (‘APR’). The US has been an important source of inspiration for implementing such a far-reaching reorganization procedure. The Absolute Priority Rule is generally considered to be one of the most important rules of US bankruptcy law, see recently the US Supreme Court in the famous Czyzewski v. Jevic Holding Corp case, calling the APR “quite appropriately, bankruptcy’s most important and famous rule” and “the cornerstone of reorganization practice and theory.”
Without much in-depth analyses or debate, the European Union is about to embark on a wild adventure. It seeks to implement the US reorganization culture, without however the most basic rule of protection. Continue reading “A reply to professor Madaus “The new European Relative Priority from the Preventive Restructuring Directive – The end of European Insolvency Law?””