HARMONISING INSOLVENCY LAW IN THE EU: NEW THOUGHTS ON OLD IDEAS IN THE WAKE OF THE COVID-19 PANDEMIC (original) (raw)
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Insolvency Law in the EU: New Thoughts on Old Ideas in the Wake of the COVID-19 Pandemic
International Insolvency Review, 2021
The COVID-19 crisis, which hit the world with full force in 2020, represents one of the greatest health and economic crises in recent history. The pandemic paralysed the world economy, forcing many countries around the globe to take emergency measures. Countries’ emergency responses to the crisis uncovered a tension between the continuous phenomenon of global economic interdependence and the tendency for nation-state governance during the crisis. Although this dichotomy was quite acute in the European Union (EU) at the onset of the pandemic – reflected overall by Member States’ preferences for national solutions over common multilateral solutions – governments eventually converged towards similar responses to the spread of the virus. These responses to the crisis included partial or total isolation of populations, travel bans, and the temporary closure of non-essential businesses. This so-called phenomenon of ‘copycat coronavirus policies’ was the result of regulatory emulation, which occurred spontaneously, with limited direct impetus from the EU. Our paper investigates whether insolvency and restructuring laws, policies, and measures followed a similar pattern. The study focuses on six selected European countries: Denmark, France, Germany, Italy, the Netherlands and the United Kingdom (UK). From a methodological perspective, our contribution relies on a case study approach. Building on the findings of this case study, our paper, then, draws more general conclusions on the process of harmonisation across the EU.
Insolvency Law after the Covid-19 pandemic
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On the occasion of the Congress organized by the Insolvency Commission of L’Union Internationale des Avocats (UIA), this presentation was made, as a prologue conference, to summarize what insolvency law is, how it touches upon the pandemic and what is the pandemic’s effect on insolvency law. 1. The challenge of the situation The UIA congress proposed a real challenge to the conduct and professional activity of those who are professionally dedicated to insolvency law by titling it: Effects and consequences of the Covid-19 pandemic on companies and measures that the insolvency law offers. This title encourages you to think and meditate on what happened and, above all, what the pandemic leaves behind. Experiences that were unimaginable two years ago have now accumulated. The idea of this introduction to the congress (and of this paper) was to guide the activity of insolvency professionals from now on.
International Journal of Business and Social Science Research, 2021
This paper aims to define certain rules that may accompany insolvent enterprises and over-indebted households in post-pandemic recovery. At this time, the crucial need to provide entrepreneurs, creditors, debtors, and consumers with certainties cannot be delayed. In the wake of the COVID-19 pandemic, various countries are adopting measures to change the application of their insolvency laws. The Virus was circulating in Italy before spreading to all other European countries, therefore the Italian government had to adopt urgent measures, which drastically impacted insolvency and collective procedures, inter alia. The paper focuses on the legislative provisions adopted by the Italian government as compared to the recent communication of the European Commission of 19 March 2020 ("The new temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak") and to the Directive (U.E.) 2019/1023 on restructuring and insolvency. In light of the fore...
European Insolvency Law: Development, Harmonisation and Reform - A Case Study on the Internal Market
Trinity College Law Review , 2015
This article generally focuses on the efforts at EU level to provide a legal framework for dealing with cross-border bankruptcies, notably through the European Council Regulation on Insolvency Proceedings of 2000. This article aims to explore the issue of the harmonisation of corporate insolvency and rescue law at European level, and the tensions between different solutions for the reform of cross-border insolvency and business rescue.
European Insolvency and Social Policy: Harmonisation Woes
Underpinned by traditionally opposing socio political values, the juxtaposition of insolvency law and employment protection is difficult to reconcile. However, in these times of financial crisis and its slow recovery, business failures and unemployment are both at the forefront of economic concerns. The European Union has made its mark in this area with the Acquired Rights Directive which contains provisions dealing with the transfer of employment contracts in the event of a business transfer, including those transfers which occur during corporate rescue procedures. While implementation was left to the Member States and a number of derogations were available, the application of employee transfer provisions in corporate rescue procedures has not failed to cause controversy over the 36 years since its initial implementation. Many EU and national cases have caused further complications. The cooperation of the Member States in matters of insolvency also has a long history. It has been a 40 year project within the European Community/Union evolving in complexity and cooperation as the EU has expanded and changed. The culmination is the EU Insolvency Regulation which deals with how cross border insolvency should be managed between the Member States. INSOL Europe has recently proposed amendments to the Insolvency Regulation aimed at furthering the proper functioning of the Regulation by amending substantive aspects and improving technical rules. Among the fundamental issues to be resolved is the ease with which companies can “forum shop” among Member States to identify a jurisdiction providing the most advantageous environment to commence insolvency proceedings. However, the EU goal of reducing forum shopping overall is not helped by the existence of divergent rules of employment protection. The purpose of this paper is to discuss how the recommended reforms to the EU Insolvency Regulation affect the application of acquired rights in business transfers, with specific comparisons between the UK and France, and how the lack of cohesiveness in acquired rights implementation may indicate a need for harmonisation in this area of the law in order to prevent an insidious species of forum shopping – social dumping.
The EU incremental approach to cross-border insolvency regulation: a critical analysis
International Company and Commercial Law Review, 2017
This article analyses the quality of the European institutions' initiatives in the field of cross-border insolvency law. It reviews the progression of such developments, shedding light on the general incremental approach adopted by the EU, which is then evaluated. The findings are that the EU's approach to implementing and later reforming insolvency law should be commended.