2011 06 jira wessels

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Presentatie EU Insolventieverordening Wessels

Text of 2011 06 jira wessels

  • 1. JIRA 23-06-2011EU Insolvency Regulation Introduction JurisdictionBob Wessels University of Leiden Law School St. Johns University School of Law, New Yorkwww.bobwessels.nl

2. Themes of Today EU Private Intl Insolvency Law Framework Goals and Scope of InsReg Cases: Daisytek Staubitz-Schreiber Parmalat Eurofood Deko Marty Probud Focus: Int.l jurisdiction Coordination of proceedings Nortel Networks Lehman Brotherswww.bobwessels.nl 3. EU PRIVATE INTL INSOLVENCY LAW FRAMEWORK 1. Intl Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 Brussels Convention - now: 2002 Brussels Regulation (44/2001) Art. 1(2) excludes from its scope: (b) bankruptcy and analogous proceedings; 2. Intl Jurisdiction, Recognition and Applicable Law in Insolvency Matters Regulation 1346/2000 on Insolvency Proceedings - Entry into force: 31 May 2002 Art. 1(2) excludes financial institutions from its scopewww.bobwessels.nl 4. EU PRIVATE IIL FRAMEWORK (Contd) 3.Insurance Undertakings / Credit InstitutionsInsurance undertaking Directive 2001/17 of 19th March 2001[implementation date: 20 04 2003] (Art. 213 - 213kk Neth. BA) Credit institution Directive 2001/24 of 4th April 2001 [impl. date 05 05 2004] (Art. 212g 212nn Neth. BA)Within context of Credit Institutions: Directive 94/19/EC on Deposit-guarantee Schemes Dir. 2009/14 (O.J. L 68/3 of 13 March 2009)EU Directive 98/26 on Netting and Securities settlement Systems EU Directive 2002/47 on Financial Collateral Arrangements (Implementation date: 27 December 2003) www.bobwessels.nl 5. EU PRIVATE ILL FRAMEWORK (Contd) 4. Other provisions re insolvency, e.g. Dir. 77/187/EC re Safeguarding of Empoyees Rights in the event of Tranfer of Undertakings Dir. 90/314/EC re Package Travel / Holidays / Tours Dir. 97/9/EC re Investor Compensation Schemes Dir. 2000/35 Late Payments in Commercial Transactions Dir. 2000/74 Protection Employees in the Event of Insolvency of their Employer (updating Dir. 77/187 and Dir. 80/987) EU Reg. 2001/2157 re European Company Statute (Art. 67) August 2008 - Proposal EU Reg. on the Statute for a European Private Company (Societas Privata Europaea) (Art. 40) www.bobwessels.nl 6. Any System ? Framework or mess? Title V TFEU Area of Freedom, Security and Justice > Judicial cooperationwww.bobwessels.nl 7. www.bobwessels.nl 8. Basis in TFEU (replaced TEC as of 1 December 2009 O.J. C 115/171 (9.5.2008)Title V (Area of Freedom, Security and Justice) Art. 67 TFEU (ex Art. 61 TEC): 1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control,.. 3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia ., as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. 4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. www.bobwessels.nl 9. Chapter 3 Judicial Cooperation in Civil MattersArt. 81 TFEU (ex Art. 65 TEC): 1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. 2. .. versus Title IV Free Movement of Persons, Services and Capital; Art. 49 TFEU (ex Art. 43 TEC) Right of Establishment www.bobwessels.nl 10. GOALS of EU INSOLVENCY REGULATION Convention 1995 (Report Virgs / Schmit) > InsReg 2002 Rationale (object): EU wishes to coordinate measures to be taken regarding an insolvent debtors assets, while the proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently and effectively InsReg aims to achieve this objective within the scope of judicial cooperation in civil matters within the meaning of Art. 81 (TFEU) (was Art. 65 TEC) (Freedom, Security and Justice), so: www.bobwessels.nl 11. GOALS of EU INSOLVENCY REGULATION a. To determine the international jurisdiction of the courts or authorities with regard to the intra-Community effects of main insolvency proceedings b. To create certain uniform conflict-of-laws rules for such proceedings c. To ensure the recognition and enforcement of judgments given in such matters d. To make provisions for the possibility of opening secondary insolvency proceedings e. To ensure mutual coordination and communication between liquidators in main and secondary proceedings f. To guarantee information for creditors and a right to lodge claims www.bobwessels.nl 12. SCOPE IN SUBSTANCEEU InsReg is applicable to proceedings (Art. 1(1)): 1. That are collective : all creditors concerned may seek satisfaction only through these insolvency proceedings, as individual actions will be precluded 2. Based on the debtors insolvency and not on other grounds the insolvency-test itself is rooted in the legislation of the lex concursus 3. The proceedings must entail the total or partial divestment of the debtor, and 4. The appointment of a liquidator.www.bobwessels.nl 13. SCOPE IN SUBSTANCELimited framework: >proceeding and liquidator should be mentioned in one of the applicable Lists in the Annexes:A.Insolvency proceedings, referred to in Art. 2(a);B.Winding up proceedings, referred to in Art. 2(b), andC.Liquidator, as referred to in Article 2(c).www.bobwessels.nl 14. Check proceedings Parmalat SpA: December 03 Amministrazione straordinaria delle grandi impressi in stato di insolvenzawww.bobwessels.nl 15. Belgium Act concerning continuity of undertakings In force 1 April 2009 In Annex A?www.bobwessels.nl 16. Not (yet) in Annex 01-04-2009 Belgium Act of Continuity of businesses > Gerechtelijke reorganisatie, only since March 2010 in Annex A 01-07-2010 Austria Sanierungsverfahren mit Eigenverwaltung unter Aufsicht eines Verwalters > proposal April 2011 Latvia - Annex A lists 6 proceedings, but one misses the word rpustisas and three do not exist any more since 1 November 2010. The Annex A proposal of April 2011 only mentions three proceedings, but the cited word is still missing www.bobwessels.nl 17. IMPACTThe EU Insolvency Regulation applies to all (app. 100) listed insolvency proceedings in which a person/body (acting as liquidator) is appointed in 26 EU countries, whether the debtor is a natural person or a legal person, a trader, a merchant or an individual but not to insolvency proceedings concerning financial institutions (Art. 1(2)) ! 22 official EC languages ! www.bobwessels.nl 18. FORMAL SCOPEMain proceedings (Art. 3(1)): The courts of a Member State where the centre of the debtors main interests (COMI) is situated Universal scope and aim at encompassing all the debtors assets Recital 13: The centre of main interests should correspond to . the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties For a company or legal person COMI is the place of its registered office (rebuttable presumption)www.bobwessels.nl 19. FORMAL SCOPESecondary proceedings (Art. 3(2) and Art. 27) The court of another Member State shall have only jurisdiction, if the debtor possesses an establishment within the territory of that other Member State (Art. 3(2)) Art. 2(h) . any place of operations where the debtor carries out a non-transitory economic activity with human means and goods Effects restricted to the assets of the debtor situated in the territory of the other Member State (Art. 3(2)) www.bobwessels.nl 20. FORMAL SCOPE Secondary proceedings (Art. 3(2) + Art. 27): Purposes: (a) Protect usually local creditors from the main proceedings (b) Assist and support the main proceedings Opened after opening main proceedings: No insolvency test in other State Nature must be winding up proceedings (Annex B) (Art. (3)(3) and 27) Territorial scope www.bobwessels.nl 21. Impact of COMI decision Art. 16 - recognition Art. 4 - applicable law Art. 18 - powers IOH Art. 29(a) request opening of sec. proc. in other MSs Art. 31 - coordination main/secondary proc. Art. 40 - duty to inform creditors www.bobwessels.nl 22. Theme 1 Intl Jurisdiction Main COMI Recital 13 Nature: Annex A Universalism: lex concursus COMI Presumption - companies Secondary establishment 2(h) Nature: liquidation - Annex B No examination of debtors insolvency Effects restricted to territory www.bobwessels.nl 23. Caseswww.bobwessels.nl 24. Daisytek Int. Corp. USAISA Int.l plc UK BradfordHundleby ScotlandSource Ltd North. IrelandISA Wholesale Plc UK 450 p.10 other subsPar beteiligungs GmbH B+PISA Daisytek SAS 150 p.Isa Deutschland GmbHSupplies team GmbHPPwww.bobwessels.nl 25. www.bobwessels.nl 26. Daisytek High Court of Justice Chancery Division Leeds District Registry Administration Order 16 May 2003 Judgment 6 July 2003www.bobwessels.nl 27. www.bobwessels.nl 28. www.bobwessels.nl 29. AG Dsseldorf 6 June 2003 In three nearly similar judgments of 6 June 2003 AG Dsseldorf considers that the court is aware that the Leeds judgment has to be respected, because it was first in time. Then follows: The decision does not bring forward any legal effect towards the debtor-company. For the aforementioned decision has not mentioned and not respected the provisions of the Regulation. It is therefore rectified that the judgment of May 16 has its limits there, were the provisions of the German Insolvenzordnung have their own rules and insofar limi