Cross-Border Insolvency

As India successfully positions itself as one of the core, influential nations of the world, its security scenario has become more vulnerable and complex. The roots of India's security challenges lie not only at the regional and international levels but also from within. These threats can be dealt with by securing the borders efficiently. However, the borders of India and their associated problems, geographical, social and cultural, are vivid and varied. Each border receives a different kind of treatment in accordance with the existing mutual relationship across the border. If the border people cannot connect with the country's mainstream, national security is affected. Indian policymakers face a hard challenge to formulate an integrated policy for borderlands and borders. While there are many common cross-border issues, chiefly non-security threats, there are other cross-border issues which are border specific. Besides, soft approaches to economic and cultural cross-border interactions are beneficial. The border security approach focuses on defending the borders from various threats but the border management approach involves protecting the interests of the country across the border.

There are more types of borders today than ever before in history. Borders of all kinds define every aspect of social life in the twenty-first century. From the biometric data that divides the smallest aspects of our bodies to the aerial drones that patrol the immense expanse of our domestic and international airspace, we are defined by borders. They can no longer simply be understood as the geographical divisions between nation-states. Today, their form and function has become too complex, too hybrid. What we need now is a theory of the border that can make sense of this hybridity across multiple domains of social life.

Rather than viewing borders as the result or outcome of pre-established social entities like states, Thomas Nail reinterprets social history from the perspective of the continual and constitutive movement of the borders that organize and divide society in the first place. Societies and states are the products of bordering, Nail argues, not the other way around. Applying his original movement-oriented theoretical framework "kinopolitics" to several major historical border regimes (fences, walls, cells, and checkpoints), Theory of the Border pioneers a new methodology of "critical limology," that provides fresh tools for the analysis of contemporary border politics.

Laws differ from one country to another in the European Union. When legal diversity is perceived as a problem, notably for the integration of the Internal Market, harmonisation is used as a tool to increase the similarity of legal rules. However, legal harmonisation in the EU can be a challenging task. Familiar arguments against legal harmonisation include the protection of national sovereignty, the preservation of legal cultures and the superiority of regulatory competition. These arguments have been studied extensively in the literature. This paper takes a novel approach by providing a perspective from the field of social psychology to further our understanding of the challenges of legal harmonisation in the EU. We adopt a case study method and focus on the specific area of European insolvency law to provide specific examples of how psychological biases have influenced the harmonisation process

Bernard RA. Santen, Fabian A. van de Ven and Gert-Jan Boon follow up their previous article with further analysis, regarding what a judge in the EU should consider when opening a secondary insolvency proceeding, based on the text of the European Insolvency Regulation 848/2015 (EIR Recast) which will come into force on 26 June 2017.

The European Insolvency Regulation and the Spanish Insolvency Act allow the celebration of protocols or agreements in order to coordinate the insolvency proceedings opened in different States. Nevertheless, none of the two instruments has established an express regime on such aspects as its content, limits, elaboration and functioning. Such silence might be overcome in the understanding that its content deals with procedural, and not with substantive aspects, and the protocols cannot alter the mandatory rules. Also, it might be argued that the celebration of the protocol does not require the previous authorization of the bankruptcy court, although it does need later approval. The execution of the protocol should be conceived as a good procedural practice, and the failure of its execution might mean a lack of the due diligence in conformity with the insolvency legislation. In this respect, any controversy relative to the fulfilment of the protocol can give rise to specific mechanisms of arrangement, in accordance with a literal, teleological and contextual interpretation of the protocol.

Affrontati i problemi interpretativi e i dubbi di legittimità costituzionale sollevati dalla disciplina sulle proposte concorrenti e sui c.d. concordati preventivi espropriativi, anche alla luce della legge delega per la riforma della crisi d’impresa l.155/2017, l’A. propone, de lege ferenda, l’inclusione dei soci nel procedimento e regole di cram down che conformino più nettamente la contrattazione concordataria a un nuovo paradigma, risultante dalla disciplina delle trattative e della conclusione del contratto (legge del contratto) invece che da quella della responsabilità patrimoniale del debitore (legge del concorso). Si argomenta in base al dibattito tedesco che, se indica i fondamentali effetti sistematici dell’inclusione dei soci nel procedimento concordatario, avverte però della necessità di riflettere sul contenuto dell’interesse dei soci oltre la dimensione meramente patrimoniale.

This article examines the latest European initiatives in the area of cross-border insolvency and rescue law. In this respect, it assesses these developments against the background of the need for further harmonisation within the European Union (EU), generally advocated as a prerequisite for the smooth functioning of the European Single Market. The general aim of this article is to use the field of European cross-border insolvency and rescue law as a case study to determine which integration model is the most adequate at this stage of European integration.

Cross-border insolvency is primarily a matter for private international law. In past, one some limited occasions it has resulted into cases brought before the International Court of Justice and the Iran-US Claims Tribunal. In recent times, with the advent of investment treaty arbitration cases arising out of cross-border insolvency are brought before international tribunals. The actions of the executive or the judiciary of a host State may result into insolvency of a multinational corporation. In several situations, such a corporation can seek protection under investment treaties if they are forced in insolvency, at the same time a host State may defend its actions based on its adherence to the UNCITRAL Model Law on Insolvency. Thus, a matter that was primarily a question of private international law has been a subject matter for public international law and in particular international investment law.

Edited collection of papers from the INSOL Europe Academic Forum Conference in Warsaw, Poland on 4-5 October 2018

1. Tripping the Light Fantastic: A Comparative Analysis of the European Commission’s Proposals for New and Interim Financing of Insolvent Businesses
Professor Jennifer Payne and Professor Janis Sarra

2. Prophesying Britain’s Future in the Balance of Social Policy and the Rescue Culture – Challenges to Post-Brexit Harmonisation
Dr Jennifer L. L. Gant

3. Does Strategic Bankruptcy Create Value? Employment Retention Post Bankruptcy
Associate Professor Rick Aalbers

4. The Position of Subordinated Creditors in Insolvency Proceedings
Niels Pannevis

5. Sandboxes for Directors: Minimizing Liability Exposure in Financially Distressed Companies
Ilya Kokorin

6. The New “Group Coordination Proceedings” in the European Insolvency Regulation to the Test of Preventive Restructuring
Nicolò Nisi

7. The Impact of Brexit on Cross-Border Restructurings
Paul Omar

8. Asset Partitioning by Means of IP Rights
Dr Janice Denoncourt

9. Preventive Restructuring Schemes: Risk of Abuse?
Christina Fitzgerald

https://www.insol-europe.org/publications/technical-series-publications

This book shall address the problem of choice of law in cross-border bankruptcy. The reasons for that unfortunate state of affairs are numerous and shall be dealt with in this book. This book calls for adopting the center of main interests (COMI) as a uniform choice of law rule that could act as a functioning solution until harmonization in this field of law could be achieved. The main focus of this book is to test the validity of the proposed choice of law rule through a comparative law study of three different states which are the U.S., France and Egypt. The above states were chosen to reflect as much as possible the diverse standing on the issue of Cross-border bankruptcy in particular and in choice of law in general.In particular the focus will be on The lately enacted chapter (15) of the U.S. bankruptcy code and the European Insolvency Regulation as it is applied within France and the E.U.

This special issue addresses the possible connections and mutual benefits of examining together two analytic concepts – memory and periphery. These concepts receive much attention in various scholarly discussions, yet they have done so rather independently from each other. The potential applications and utilities of combining memory and periphery and the epistemic insights they provide for various disciplins are presented in the different contributions to this issue.

The European Parliament, after a lengthy debate, has eventually approved a reform of Regulation 1346/2000 on cross-border insolvency proceedings (hereinafter, the ‘Insolvency Regulation Recast’), which provides for significant innovations in the original Regulation, such as an EU-wide register of insolvencies and a new proceeding for insolvencies of corporate groups. The fundamental logic of the Regulation, however, does not change: the Recast does not harmonise insolvency rules at EU level and its goal is still selecting competent venues and applicable insolvency regimes. In many respects, the reform simply codifies CJEU’s case law, with the aim of increasing legal certainty. The Insolvency Regulation Recast is, however, innovative regarding the definition of COMI, by repealing the causality relation between criterions of ‘permanence’ and ‘ascertainability’. Eventually, the Recast aims at better coordinating secondary proceedings and main proceedings; in this regard, it introduces ‘synthetic secondary proceedings’, whereby the insolvency practitioner of the main proceeding undertakes to respect other Member States distributional criterions in order to avoid the opening of a secondary proceeding. The real impact of these innovations is, however, uncertain.

In transposition of the EU directive 2302/2015, the legislative decree n. 62/2018 sets out the insolvency protection schemes in relation to packages and linked travel arrangements. Given the organisers’ obligation to provide sufficient evidence of security for the refund of payments and the repatriation of travelers in the event of insolvency, the Author focuses on the provision that the protection shall be ‘effective’ (art. 47 cod. tur.). Thus, the Author assesses the insolvency protection schemes in the light of the principle of effectiveness. Moreover, the Author explores the potential of insolvency insurance as a policy tool to overcome the hurdles to full harmonisation of insolvency law within European Union and its role in the protection of unsecured vulnerable creditors.

The cooperation of European countries in matters of insolvency has a long history. It has been a 40 year project within the European Union,  evolving in complexity and increasing in cooperation as the EU has expanded and changed.  The culmination of this cooperation was the EU Insolvency Regulation  which deals with the coordination of cross-border insolvency between member states. In 2012, INSOL Europe  proposed amendments  to the EIR, aimed at furthering its proper functioning by amending substantive aspects and improving technical rules. Among the fundamental issues to be resolved was 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, goal of reducing forum shopping overall is not helped by the existence of divergent rules of employment protection among the member states.
Underpinned by traditionally opposing socio-political values, the juxtaposition of insolvency law and employment protection is difficult to reconcile. However, in these times following the financial crisis and its slow recovery, business failures and unemployment are both at the forefront of economic concerns. The EU has applied itself to the intersection of employment protection and insolvency procedures within the Acquired Rights Directive,  which contains provisions requiring the transfer of employment contracts to the buyer of a business or a part thereof upon its transfer,  including those transfers which occur as a result of corporate rescue procedures. As the ARD provisions took the form of an EU directive, the form and method of implementation of the ARD was left to the member states as long as the intended results of the directive were achieved within national legislation. A number of derogations were also available within the ARD, including the potential to disapply the transfer provisions if the transferor were:

“…subject to bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to [the] liquidation....” of a company.
The application of employee transfer provisions in corporate rescue procedures has not failed to cause controversy over the 37 years since its initial implementation, significantly as the derogation for insolvency procedures was not present in the original ARD.  Many EU and national cases have caused further complications, particularly in relation to how national social policies affect the aims of corporate rescue with regard to the relative favouritism of the safeguarding of employment.

Social policy legislation also has an effect on how insolvency systems function in practice as the procedural outcomes can affect a variety of more vulnerable entities such as employees, their families, and the community at large. The relative protection of these more vulnerable entities differs from member state to member state according to diverse national views on the importance of social policy matters. A conception of the effectiveness of insolvency and business rescue procedures that includes a reflection upon the interaction of state and EU requirements of employee protection legislation would likely encourage a more holistic approach to improving cross-border insolvency within the EU. While such a matter is not strictly the prevue of EU insolvency law in its current scope, there are practical matters affecting how a pan-European rescue culture can function with the greatest efficiency when the conflicting goals of insolvency and the protection of employment are not recognised and, to some extent, managed.

Among the EU member states that continue to exhibit fundamentally different approaches to corporate rescue and employment protection, the United Kingdom  and France present two extreme examples. Through the comparison of two divergent but also highly influential EU jurisdictions, both historically and in the current political climate, an example of the obstacles facing overall convergence in this area can be demonstrated. The differences in these two jurisdictions will also help to highlight the problems associated with differing levels of social protection in terms of jurisdictional competitiveness and cross-border cooperation. This article will discuss the parallel evolution of corporate rescue and the implementation of the ARD in the UK and France with a view to illuminating these obstacles to convergence. While harmonisation in the area of social policy continues to be resisted by many member states, it could be that such harmonisation or at least convergence might assist in capturing a greater cohesiveness in cross-border business and insolvency and level the field of competition between the member states of the EU.

Le disposizioni contenute nel Reg. n. 848 sulle procedure di insolvenza transfrontaliere e, se infine promulgata, nella Direttiva sugli strumenti di allerta, di ristrutturazione preventiva e sulla seconda opportunita` si pongono su una linea di continuita` con l’impostazione del diritto UE nel settore, ma offrono anche novita` di grande rilievo. Prima tra tutte, e` l’estensione dell’ambito di applicazione del Regolamento cit. a procedure escluse dalla previgente disciplina – ed, in particolare, a quelle fondate sulla ‘‘probabilita` di insolvenza – accompagnata da una serie di norme di nuovo conio volte ad esplicitare regole di coordinamento e di cooperazione tra le procedure aperte in piu` Stati membri. Il quadro che ne emerge e` molto complesso e richiede ampie indagini comparate allo scopo di comprenderne appieno la portata. La successiva Proposta di Direttiva interviene su alcune procedure soltanto, ma impone agli Stati membri di affrontare in ottica di mercato interno UE anche il regime delle procedure nazionali. Dalla combinazione dei due strumenti si sviluppera` un approccio senza dubbio piu` sistematico al problema delle insolvenze nel territorio UE, che imporra` ai legislatori nazionali nuove riforme dopo le tante gia` approvate nell’ultimo decennio in molti paesi (Italia, Francia, Spagna, Belgio, ecc.). In Italia, in particolare, le nuove norme UE dovranno costituire elemento di riferimento nell’attuazione della delega contenuta nella L. 19 ottobre 2017, n. 155, che dovrebbe condurre ad un ampio rinnovamento della disciplina concorsuale.

While the intent of dominant cross border insolvency regimes such as the UNCITRAL Model Law and the European Union Insolvency Regulation on Cross Border Insolvency is to “universalize” the resolution of corporations operating across various jurisdictions, the ideal outcome of maximizing firm value and ensuring predictability for corporate creditors and shareholders may not in all cases operate effectively because of (a) the high degree of discretion assumed by national insolvency authorities, particularly in determining the firm’s center of main interests, and (b) the inability of existing regimes to effectively resolve multinational corporate groups. It is in this way that existing cross border insolvency regimes can be viewed as a hindrance to globalization by both increasing transaction costs and encouraging an attitutde of territoriality among corporate players and regulators.

However, because of the recognized need for cooperation and coordination implicit in any effective cross border resolution, these regimes have succeeded in raising awareness of the need for effective cross border resolution and have pushed regulators to recognize not only the cross border effects of corporate resolutions, but also of the need to address lingering questions persisting in existing frameworks. It is in this zone of cooperation and coordination that these regimes serve as a potent counter-force against this attitude of territoriality spawned by lapses in existing regulations, thereby demonstrating the potential for enhancing both orderly resolution and promoting globalization in the corporate sphere.

Debt has been a problem for millennia. The roots of the modern insolvency law are in the “jus mercatorum – merchant law”, which took shape in the North of Italy in the late Middle Ages: in case of financial distress, heavy financial and personal penalties, but also the “fida-safe conduct”, the possibility of settling disputes outside court. Contemporary international institutions focused ADRs on commercial disputes for decades, only in the last ten years mediation in insolvency cases. The 2008 economic crisis and the Covid pandemia (2010) raised problems and increased social inequalities. Mediation can be useful to prevent / manage insolvency disputes. But in developing countries it seems there still is a long way to go.

The framework in which cross-border insolvency and rescue law is construed focuses on the universalism and territorialism divide, which originated in academic scholarship in the US. This article argues that this framework is not the most appropriate for the European Union at present and should be replaced by another.

Opening secondary insolvency proceedings in the EU:
Bernard P.A. Santen, Fabian A. van de Ven and Gert-Jan Boon provide a concise survey of what judges
should consider before opening secondary proceedings in an EU Member State after Burgo/Illochroma.

Chetumal y la zona limítrofe de Belice, mantienen lazos familiares, sociales y económicos.  Nombres, apellidos y actividades similares, existen, coexisten y se enriquecen continuamente, en ambos lados de la frontera.  ¿Abarca ello, también, a la música?  ¿El intercambio socio-cultural, espontáneo, existentes en otros órdenes de la sociedad y la  cultura, se dá también con respecto a la música contemporánea en la Ciudad de Chetumal?  ¿En qué medida?  ¿Con qué sentido?  ¿Cómo es que ello se explica? .

This article is based on a short seminar which the Authors gave to the British Italian Law Association (BILA) on 22 September 2015 in London. It is also pointed out that in order to make comparisons between the avoidance regimes of the two countries easier to follow, the English categorisations of transaction at undervalue and preferences in favour of creditors have been adopted. These are not recognised as such under Italian law which speaks broadly of “acts prejudicial to creditors” and does not specifically recognise these individual sub-categorisations.  This article contains:
1) an outline of what is a “legal act detrimental to creditors”,
2) consideration of whether the debtor or debtor company’s centre of main interests (“COMI”)  is in a Member State of the EU since by Article 4.1 and 4.2(m) of the European Insolvency Regulation (Council Regulation (EC) No 1346/2000  – hereafter “the Insolvency Regulation”) the insolvency law of the Member State of the debtor’s COMI is the law applicable to the insolvency proceedings including the avoidance or adjustment of such “detrimental acts” (subject to exceptions),
3) discussion of the main features of the domestic avoidance of transaction legislation of  Italy applicable with a few words on comparisons and,
4) examination of the “saving [of transaction] provisions” of Article 13 (“Detrimental acts”) of the Insolvency Regulation where the detrimental act is governed by the law of another Member State.

"El volumen se dedica al análisis de la disciplina normativa de los Estados europeos en materia de sobreendeudamiento e insolvencia de las personas naturales, materia ésta relacionada a su vez con el vertiginoso aumento del crédito al consumo; todo ello en un momento en que gradualmente va tomando forma en Europa una especie de “Derecho concursal civil” (?), centrado en la gura del Ciudadano privado.
El ordenamiento jurídico comunitario, tanto desde una perspectiva general como desde la perspectiva singular que aportan las respectivas legislaciones de los Estados miembros, presenta cierto décit regulatorio desde la perspectiva de la mejor tutela de familias y consumidores endeudados en exceso. Esta insuciencia, tanto por sí misma como en combinación con otras disfunciones, sigue inuyendo en el colapso economico-nanciero de una Europa condicionada por una excepcional coyuntura económica cuyas dimensiones aún no son exactamente apreciables.
El volumen se propone contribuir a la identicación de las ineciencias de fondo que subyacen en el actual sistema jurídico comunitario desde la perspectiva que ofrecen los “ajustes” considerados más oportunos."

This thesis explored the demise of Lehman Brothers, the underlying failure that served as a catalyst for the global financial crisis in 2008 and examined its derivatives portfolio from a legal angle.  The main research question was whether there has been significant development in the law of financial derivatives post-2008.  The methodology of the research has been conducted through library-based means, utilising the caselaw and statutes, academic practitioner books in addition to journals accordingly.  The literature includes legal and academic journals about the future of the law in derivatives.  It also includes the background context of official reports leading to reform of the law, and whether regulation in derivatives has been tightened to ensure a prevention of future financial crises.  The limitations of this type of literature review is complete reliance on published research, in addition to caselaw and practitioner viewpoints. 

Chapter 2 analysed the liquidation of Lehman Brothers and its derivatives portfolio. It further examined the ISDA Master Agreement, cross-border insolvency issues; the English legal position of Lehman’s derivatives, examining section 2(a)(iii) and the credit risk related to the banks’ portfolio.  It concluded English law committed strong performance in relation to the ISDA agreement, and the valuation issue on close-out has proved commercially important.  It also found that Firth’s view on derivatives and the provision was correct to an extent.  Derivatives were only considered by the English and U.S. Federal Courts on a handful of occasions, but the past decade demonstrated clarification of important legal issues.

Chapter 3 explored the connection between trusts law and financial derivatives, in particularly whether the English and U.S. trust law litigation created a new dimension in the law of trusts to Lehman’s derivatives portfolio.  It concluded that a nexus does exist, and that a liberal view of trusts law ought to applied by practitioners and the Courts in order for creditors to be paid their debts.  The Lehman Brothers’ collapse left complexities in trying to solve how each counterparty and customer’s position could be financially settled.  There is no settled legal principle to establish whether proprietary rights can be ascertained or delivered to insolvency claims and serves little practical value to beneficiaries.

Chapter 4 critiqued whether regulation has tightened the law on derivatives post-2008.  This paper concluded that the use of derivatives transactions is still risky.  While regulation exists to avoid future crises, there are still inherent loopholes in order for traders and institutions to adopt risky trades accordingly.

The JCOERE Project, funded by the European Commission’s DG Justice Programme (2014-2020), addresses two aspects of the European Union’s strategy to respond to the problems of cross-border insolvency within the increasingly integrated internal market. The European Commission’s strategy is described in the Commission Recommendation 2014/135/EU on a new approach to business failure. The first aspect concerns the co-operation obligations that have been imposed on all domestic Member State courts and judiciary under the European Insolvency Regulation (Recast) 2015/848 (EIR Recast). The second concerns the implementation, subsequent to the Preventive Restructuring Directive 2019/1023, of a preventive restructuring framework in the domestic law of all Member States.

The second JCOERE Report analyses the co-operation obligations arising from the EIR Recast, which are imposed on courts and practitioners in EU Member States to co-operate in cross-border insolvency and restructuring matters. The Report also undertakes a benchmarking of judicial utilisation and awareness of best practice guidelines on co-operation that have been adopted by European and international organisations. This was achieved through engagement with judicial networks during a number of interactive workshops and through the distribution of a judicial survey to three focus groups comprised of members of the judiciary. This, together with JCOERE Report 1, has contributed to answering the overall project research question, which asks:

Based on existing experience with restructuring (e.g. Ireland), will obstacles to court co-operation arise from substantive rules, which are particular to preventive restructuring.
Will some of these obstacles to court co-operation be exacerbated in the preventive restructuring context, given that they pertain to existing procedural rules?
JCOERE Project Report 2 reflects the goals of Workpackage 3 of the Project and accordingly focusses on the courts, including judicial and administrative authorities, charged with approving and implementing restructuring plans and to which the co-operation obligations are addressed. The second Report considers the application of best practices for co-operation of cross-border preventive restructuring cases, judicial awareness of existing obligations and guidelines and judicial practice in this area. Report 2 also considers broader questions, such as differences in judicial culture across the EU Member States, how this impacts mutual trust and effective cooperation, and how the obligations and broader initiatives concerning judicial co-operation are fundamental to the question of European integration and harmonisation.

The research in Report 2 also undertakes a comparative analysis of judicial co-operation in another federalised jurisdiction, undertaking a comparison between the European Union and the United States.

https://www.ucc.ie/en/jcoere/research/report2/

Η αναγνώριση αλλοδαπών αποφάσεων και δημόσιων εγγράφων στην ελληνική έννομη τάξη σχεδόν μονοπωλείται στο πεδίο της προσωπικής κατάστασης και των οικογενειακών διαφορών.

Ηκαταγεγραμμένη νομολογιακή συγκομιδή στο πεδίο του διεθνούς
πτωχευτικού δικαίου είναι αδιαμφισβήτητα λιλιπούτεια, σε σημείο που θα μπορούσε κάποιος να υποστηρίξει, ότι η πλειοψηφία των δικαστικών λειτουργών ενδέχεται να ολοκληρώσουν την επαγγελματική τους σταδιοδρομία χωρίς να έχουν επιφορτιστεί έστω
και μία φορά με την εξέταση του εν θέματι ζητήματος.

Στο παρόν μελέτημα, και με αφορμή την έκδοση τριών αποφάσεων  θα παρουσιαστεί με συντομία το ισχύον νομοθετικό καθεστώς, και θα διατυπωθούν μερικές σκέψεις για την υφιστάμενη κατάσταση, όπως αποτυπώνεται στη διαθέσιμη σχετική νομολογία

Esta monografia aborda o problema resultante da ausência de regulamentação da insolvência transnacional no Brasil. O processo de globalização viabilizou a intensificação das relações comerciais internacionais, culminando com o surgimento dos grandes grupos econômicos, com sociedades atuantes em diversos países. Assim, como outras grandes economias mundiais, o Brasil hoje faz parte desta realidade. Atualmente, inexiste legislação brasileira específica para tratar da insolvência transnacional, o que gera muitas incertezas e insegurança jurídica. Com isso, o enfoque do estudo passa a ser a necessidade de criação de legislação específica para regular a insolvência internacional. Neste sentido, são apresentadas as diferentes abordagens existentes, através dos modelos teóricos desenvolvidos no meio acadêmico, para lidar com falências transnacionais. O trabalho, então, se concentra de forma
mais analítica nas duas maiores correntes teóricas sobre o assunto: os modelos territorialista e universalista. Logo após, são descritas algumas experiências do direito comparado seguidas de um retrospecto sobre a história legislativa brasileira, sobre o tema de interesse. Por fim, um caso é trazido à colação como forma de elucidar o conteúdo dissertado e auxiliar na busca por respostas que indiquem a melhor forma de enfrentar a polêmica questão das falências transnacionais.

This note examines some key challenges facing MNEs, policymakers and insolvency practitioners in resolving cross-border bankruptcies within the existing framework of law and regulation, while attempting to proffer broad based as well as granular solutions to some of these issues.

The aim of this paper is to assess the impact of the financial crisis on the employment protection rights in Greece, Portugal, France and the United Kingdom and to examine its impact on their corporate rescue regimes.
In light of the crisis, the rights of the workforce have been severely compromised, so as to afford financially troubled companies the ability to recover. In response and in order to minimise the catastrophic impact of the financial turmoil on both their economy and society, all four jurisdictions introduced reforms of their corporate rescue mechanisms.
This paper is aimed to firstly identify the  key rights of workers that have been affected; and secondly, to assess whether the reforms of the pre-insolvency rescue regimes operated as an effective embankment for the protection of social and economic welfare.

The breach of public policy is the sole reason in terms of the Regulation that justifies the exceptional refusal of an EU Member State to recognize the main insolvency proceedings and grant their effects. However, the application of ordre public in this connection is more than questionable. It is doubtful whether the EU Member States may in an individual case deny effects to a European regulation as a significant and directly applicable source of European law, which is simultaneously a source of its own law, and whether such approach would not rather be an attempt to evade the regulation, which would be prohibited according to the principles of EU law. Moreover, Article 26 of the Regulation only provides for the procedural ordre public, not the substantive ordre public. The latter could apply in connection with the determination and, especially, the effects of the applicable substantive law of national origin as the lex fori concursus; the ordre public exception could in such case at least theoretically be possible from the substantive-law perspective. However, the substantive-law aspects of the situation are already reflected in Article 5 of the Regulation, which provides for the conflict-of-laws exceptions to Article 4 of the Regulation (and, indeed, in substantially all immunity and special provisions of the Regulation, i.e. Articles 5 to 15 of the Regulation). Consequently, it is more than appropriate to examine the purpose of the rule enshrined in Article 26 of the Regulation, i.e. in which situation the recognition and enforcement would have a result that is principally incompatible with the public policy of the respective Member State. No problems arise if the recognition concerns an individual normative act, i.e. an individual court decision rendered in connection with specific insolvency proceedings, for instance, in connection with a creditor’s claim or the bankrupt’s obligation. It is unclear whether the liquidator’s powers in the main insolvency proceedings can be contested and, for instance, their registration be denied in public registers in terms of Article 21 of the Regulation, such as the Land Register, the Companies Register, etc. We may probably agree that the ordre public exception is not applicable in such cases, as it is not applicable for instance in connection with the debtor’s eligibility as a party to the insolvency proceedings (cf. Article 16(2) of the Regulation, or here in the entire context of the Regulation, i.e. especially, though not exclusively, in terms of Articles 3 and 4 of the Regulation, etc.). Similarly, the ordre public exception is also not applicable if, for instance, the rescue plan relating to the bankrupt’s assets (estate) impairs the creditor’s status compared to the option of liquidating, i.e. selling, the estate. Besides, the rescue plan must still rest on the principles that guarantee due procedure, primarily the following principles: (i) each creditor must obtain at least as much as they would obtain if the estate were liquidated, (ii) further operation of the enterprise must be based on a sufficient estate, so that obligations that arise in the future in connection with the due operation of the business will be satisfied, (iii) the absolute priority rule is observed, which requires that the priority satisfaction rights are honored, or that the payment of benefits to lower classes of creditors before satisfaction of the higher classes of creditors is contingent on the latter’s consent, and (iv) the rescue plan for the bankrupt’s enterprise is subject to the court’s consent, and such consent must be withheld if the plan is contrary to laws or good morals, provided that it is approved by the majority of creditors during a separate vote within the individual classes of creditors.

The perception of insolvency and restructuring law in Europe has been subject to significant changes in recent years; with a fresh breeze coming from national reforms, topped by a radical and substantive reform as reflected in the U Drective on restructuring and insolvency (“Directive”).  For decades, the (continental) European understanding of insolvency was merciless. The troubled debtor’s directors were threatened with strict liability and, in some jurisdictions, even criminal punishment for a failure to file for an insolvency procedure. This would almost always lead to the dissolution of the debtor and the (piece-meal) liquidation of its assets. The stigma of insolvency was firmly attached to the insolvent debtor.
Compared to the United States,  it has taken some time for the European paradigm of insolvency and restructuring procedures to accept that they should be a tool to facilitate a going-concern rehabilitation of the business and to grant the debtor a second chance for the benefit of value-maximization. Legal reforms in the recent years were aimed at establishing a more restructuring-friendly culture in Europe, espousing a rescue culture for insolvency frameworks.  The underlying proposition is that a timely and cooperative restructuring, incentivized by carrots rather than sticks, should create a surplus in contrast to a delayed in-court insolvency procedure; a surplus that could be shared amongst the debtor and its creditors.
In this article, following a short description of the background of the Directive in section 2, an analytical overview of the state of the art of restructuring practice in five European countries (Denmark, France, Germany, the Netherlands, and the UK) will be provided in section 3, prior to which the key elements necessary for a successful restructuring will be extracted and explained. These key elements also reflect the main obstacles to be overcome in agreeing the contents and approach in the Directive and its eventual legislative counterpart as is demonstrated in a comparative review of the position in section 4. In section 5, an analysis of the findings set out herein linked to the Directive is given, followed by a brief conclusion and commentary on the issues present as seen from the authors’ points of view.

Una delle maggiori novita` dell’ultimo triennio in materia di regolamentazione dell’insolvenza e` l’attenzione riservata dal legislatore dell’Unione Europea agli strumenti di prevenzione dell’insolvenza. Prima con una Raccomandazione agli Stati membri, sostan- zialmente caduta nel vuoto, e poi con l’estensione anche alle procedure preventive del concetto di procedura d’insolvenza ai fini della determinazione dell’ambito di applicazione del Regolamento deputato alla disciplina dell’insolvenza transfrontaliera le norme UE hanno invaso ampiamente campi in precedenza lasciati in via esclusiva alle legislazioni degli Stati membri. Il processo di allargamento dell’intervento normativo sovranazionale sembra, peraltro, destinato ad un ulteriore passo con la Proposta di una Direttiva ‘‘riguardante i quadri di ristrutturazione preventiva, la seconda opportunita` e misure volte ad aumentare l’efficacia delle procedure di ristrutturazione, insolvenza e liberazione dai debiti’’. Ad una prima analisi delle disposizioni vigenti e di quelle in fieri emerge chiaro come il legislatore UE non abbia dedicato – almeno in modo espresso – specifica attenzione al governo della fase negoziale, talora definita di prepackaging, che puo` appunto precedere l’accesso al ‘‘giudice’’ e la pronuncia della ‘‘decisione di apertura della procedura’’. Il silenzio delle disposizioni UE lascia apparentemente irrisolta la questione in ordine al regime concorsuale o di diritto comune, eurounitario o nazionale destinato a reggere i comportamenti e gli atti del debitore, dei suoi creditori, dei terzi e delle pubbliche autorita` in quella fase.