Suchergebnisse

Two events are currently changing the landscape for business restructurings in the European Union: the 'Restructuring Recommendation' (RR) of the European Commission, issued in 2014, and the 2015 recast of the European Insolvency Regulation (EIR). In this paper, we critically review the RR and put it into the context of the reform of the EIR. We find that the recast EIR and the RR do not dovetail perfectly—a restructuring proceeding as proposed by the RR would not necessarily be within the scope of the recast EIR; we also suggest that, in any case, the EIR is not optimally designed to facilitate restructurings, given its treatment of secured creditors. Regarding the regulatory approach pursued in the RR, the Commission rightly pushes towards harmonisation with respect to Member States' restructuring regimes—regulatory competition is not a sensible regulatory alternative in this area. However, we criticise both the methodology and scope of the harmonisation proposal of the RR: sketchy minimum harmonisation of restructuring rules leaves huge potential for residual diversity in Member States' restructuring laws, and the Commission's narrow focus on restructuring proceedings ignores several aspects of the complicated interaction between the Member States' formal insolvency laws and the restructuring mechanism proposed. Further, we disagree with the substantive recommendations for Member States' restructuring laws suggested by the RR: they wrongly require financial difficulties or a likelihood of insolvency as an entry test for the recommended restructuring proceeding, and the process appears susceptible to abuse by sophisticated financial investors—it does not provide for the mandatory appointment of a supervisor and allows significant curtailments of creditor rights without sufficient safeguards in place. Instead, we propose an efficient debtor-in-possession (DIP) regime as an alternative that could be initiated regardless of a firm's solvency, provided that it is economically viable and that the filing is not ...

Europe set challenging targets for its growth and expansion in the new millennium. The "Lisbon strategy" launched in March 2000 focused all efforts on making of the Union the most competitive and dynamic knowledge-based society in the world by 2010. Different strategies were deployed in several areas to ensure success. This book focuses on the process developed in accordance with the general plan to reform modern European bankruptcy systems at the local and cross-border level. The ultimate goal of these reforms was to bring changes which could become pillars in insolvency law, thus reaching the grand objectives set in Lisbon. This process is defined in the book as a "refoundation", since the modifications sought were a radpical departure from the path followed for centuries by local European systems. The master plan of the European Union focused on increasing levels of entrepreneurialism and the number of small- and medium-sized enterprises within its market. The status quo of European bankruptcy systems at the beginning of the new millennium was found to be obsolete and harmful. Major modifications were planned of systems that worked in the exact opposite direction of the Lisbon strategy. Local European insolvency laws at the time heavily punished and stigmatized bankrupts: they labeled them as criminals, excluded them from commerce, preferred liquidations over reorganizations, and imposed numerous harsh penalties. In order to make swift changes, the Union promoted the adoption of new approaches. It favored the transplant of foreign "debtor-friendly" tools into more punitive local systems, borrowing mainly from the US Bankruptcy Code. The American bankruptcy system was deemed to be the perfect source of inspiration, as it had succeeded in making a similar shift a few decades earlier and supporting an economy that became the most competitive and dynamic in the world. This study analyzes how this complex and ambitious process has been structured, starting from its origins. It discusses the theories and studies which supported its development and the significant challenges that have caused the failure, described as an "impasse", which has impeded the Union from making necessary progress. In its conclusions, it suggests improvements which can allow the European Union and its Member States to make progress in the future. The approach that is followed attempts to see things from a different angle. Several studies have gathered, compared, and analyzed information from all the systems enacted by the Member States and other relevant countries such as the United States. The massive amount of information made available by this method, though, means that although these studies excel at giving a broad, big-picture view, smaller details disappear. This book follows a different method, which allows it to integrate previous research. It draws a more specific path, using a selection of local and international models from contemporary years and past centuries. The discussion shows specific weaknesses that have damaged European strategies and provides alternatives.

Cover -- Title -- Preface -- Table of Contents -- Part 1. Cross Border Insolvency -- Chapter 1: Introductory Remarks -- Masanori Kawano - Transnational Cooperation for Cross-Border Business Bankruptcy - Introductory Remarks - -- Chapter 2: Jurisdiction and Insolvency -- Astrid Stadler - International Jurisdiction under the Regulation 1346/2000/EC on Insolvency Proceedings -- Neil Andrews - Claims against Outsiders after Corporate Insolvency or Corporate Rescue: The Modern English Experience -- Marco De Cristofaro - Forum Shopping and Insolvency of Groups of Companies in the European Insolvency Regulation -- Michele Angelo Lupoi - A (Not so Simple Matter of) Jurisdiction: the Relationship between Regulations (EU) No. 1346/2000 and No. 44/2001 -- Chapter 3: Comparative Insolvency -- Silvia Barona Vilar / Carlos Esplugues Mota - International Bankruptcy in Spain -- Laura Ervo - The Nordic Bankruptcy Convention -- Viktória Harsági - Hungarian Judicial Practice in Cross-border Insolvency - Main or Territorial Proceedings -- Spyros Tsantinis - Basic Characteristics of the New Greek Bankruptcy Law -- Chapter 4: Security Interests in Insolvency Proceedings -- Rolf Stürner - Insolvency and Security Interests in the U. S. and in Germany -- Masaaki Haga - Security Interests in International Insolvency in Japan -- Miklós Kengyel - Charges and Security Interests in Insolvency Proceedings in Hungary -- Chapter 5: Foreign Insolvency Proceedings - Recognition and Support -- Nicolò Trocker - Multi-Jurisdictional Insolvencies and Access to Foreign Assets: Transborder Cooperation Under Title 28, 1782 U. S. C. and Chapter 15 U. S. Bankruptcy Code -- Masanori Kawano - Recognition and Support in Japan -- Domenico Dalfino - "Stay of Proceedings" and Powers of the Foreign Insolvency Representative: Substitution of Parties or Transfer of Interest?.