EU promotes Judicial Cooperation in Cross-Border Insolvency Cases
Active cross-border cooperation between courts promotes rescue of international business
A major goal within the development of an area of freedom security and justice in the European Union is the promotion of judicial cooperation. In 2013-2014 the development is envisaged of a set of Guidelines, tentatively called “EU Cross-Border Insolvency Court-to-Court Cooperation Guidelines”. These would be the outcome of a programme of study, research, discussion and the pilot training of judges for which the Leiden Law School, in cooperation with Nottingham Law School, has been awarded an EU Action Grant ‘Civil Justice’ from the European Commission, with third-party funding by the International Insolvency Institute (www.iiiglobal.org). The project team is led by prof. Jan Adriaanse (Leiden), prof. Paul Omar (Nottingham) and prof. Bob Wessels (Leiden), and coordinated by Dr. Bernard Santen (Leiden).
The (non-binding) EU Cross-Border Insolvency Court-to-Court Cooperation Guidelines will be developed for application in furtherance of cross-border communication and cooperation in insolvency cases between courts in the European Union. The result should (i) ensure as far as possible that the EU Insolvency Regulation works in practice, to efficiently and effectively deal with a debtor’s estate, (ii) fit the current environment where solutions have been developed based on models reflecting cooperation and communication, and (iii) ensure to the best possible extent the organisation and conduct of a fair legal process, with a fair representation of stakeholders concerned in insolvency processes.
The project (“the JudgeCo-project”) will further develop earlier initiatives.
In 2007, under the aegis of INSOL Europe (generally representing the European insolvency community) the European Communication and Cooperation Guidelines for Cross-Border Insolvency were published. This initiative was jointly chaired by Professors Bob Wessels (University of Leiden, The Netherlands) and Miguel Virgós (University Autonomá, Madrid, Spain). These Guidelines (also known as “CoCo Guidelines”) have received attention both in legal literature as well as from judges and practitioners and were for instance taken into account in the June 2009 Global Cross-Border Insolvency Protocol for the Lehman Brothers Group of Companies. See this website. In June 2012, the American Law Institute (ALI) and International Insolvency Institute (III) Global Principles for Cooperation in International Cases (‘Global Principles’) were published. These Global Principles, which include Global Guidelines for Court-to-Court Communications in International Insolvency Cases, were drafted by professor Ian Fletcher (University College London) and myself. Several of the CoCo Guidelines have found their way to these Global Principles. For example: see these two websites.
The JudgeCo project has its focus in its first phase (January 2013-September 2013) on developing a draft text of EU Cross-Border Insolvency Court-to-Court Cooperation Guidelines. Two surveys will be developed and sent out to a representative group of forty experts – insolvency judges, senior insolvency court representatives, insolvency lawyers/trustees/ practitioners, academics – based in the majority of EU Member States and some five non-EU jurisdictions. Based on further analysis and discussion (of the Global Principles, and the CoCo Guidelines) the draft Guidelines will be reviewed by a Review & Advisory Group (R&A Group) after which the Guidelines are to be presented to the general public. As of September the focus is on capacity building by inviting individual insolvency judges to participate in side sessions to (already) planned conferences by the JudgeCo project’s participating or invited partners. Mid 2014 it will be possible to provide ‘Cooperation Training’ to some 60 EU insolvency judges for a day and a half at three European universities (Leiden, Nottingham and a city in the Eastern-European region).