New publications:

 

 

Rattunde/Smid/Zeuner (Ed.)

German Insolvency Code

Commentary

 

Peter Lang Verlag 2018

 

Will be published in 2. quarter 2018

 

ISBN: 978-3-17-025878-5

 

After release this publication can be bought here.

 

 

 

Schriftenreihe CDEI Band 2 - Peter Lang Online Shop

 

Bluhm, Alexander

Applicability and effects of the EU-Services Directive on selection and appointment of the insolvency administrator

 

Peter Lang Verlag 2015

 

ISBN: 978-3-631-64676-2

 

This publication can be bought here.

 

 

 

 

Leonhardt/Smid/Zeuner (Ed.)

Insolvency legal renumeration Regulation

Kohlhammer Verlag 2014
ISBN: 978-3-17-022236-6

 

This publication can be bought here.

 

 

 

 

Smid/Rattunde/Martini

Insolvency Plan

Kohlhammer Verlag, 4. Edition 2015

 

ISBN: 978-3-17-025898-3

 

 

This publication can be bought here.

  • 14th Kiel Insolvency Law Symposium from 07. June to 09. June 2018

    From Thursday 7. June 2018 to Saturday 9. June 2018 the 14th Kiel Insolvency Law Symposium will take place.

    > more info

    More detailed Informations about the 14th Kiel Insolvency Law Symposium 2018 you’ll find here soon.

    Location is once again the Maritim-Hotel Bellevue Kiel, Bismarckallee 2 in 24105 Kiel.

    The Symposium will be hosted this year by Dr. Silke Wehdeking, Managing Director of CDEI gUG (limited liability), and the Kiel practice of insolvency lawyers LEONHARDT RATTUNDE Rechtsanwälte Insolvenzverwalter Notare in Berlin.

    On Thursday  7. June 2018 the 14th Kiel Insolvency Symposium starts at 6:00 p.m. with a casual meeting at the hotel terrace. The Symposium will be opened on Friday 8. June 2018 at 9:00 a.m.

    An Application form can be found here soon.





  • Proposal for a Directive of the European Parliament and of the Council

    on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU

    > more info

    On 22.11.2016 the European Parliament and the Council enacted a proposal for a Directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU.

    The proposal is based on Articles 53 and 114 of the Treaty on the Functioning of the European Union (TFEU). The proposal sets out a comprehensive set of principles and, where necessary, targeted rules for an effective preventive restructuring framework and second chance. It also provides measures to make procedures more efficient, including formal insolvency (liquidation procedures), with the aim of reducing their length.

    An effective second chance would also imply limiting the length of disqualification orders issued for honest over-indebted entrepreneurs to enable them to take up and pursue an entrepreneurial activity after a reasonable period of time. This proposal’s objective is to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. In particular, the proposal will remove additional ex ante costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the ex post costs of restructuring companies that have establishments, creditors or assets in other Member States, typically when restructuring international groups of companies.

    The proposal will also remove the additional risk-assessment and cross-border enforcement costs EN 15 EN for creditors of over-indebted entrepreneurs who relocate to another Member State in order to obtain a second chance in a much shorter period of time. It would also remove additional costs for entrepreneurs themselves who relocate to another Member State to obtain second chance. The single market problems are not limited to purely cross-border situations. Even purely national insolvencies may have a domino effect on the functioning of the single market. Companies operating cross-border have in their supply chain some suppliers that may be purely domestic businesses. Where a supplier experiences financial difficulties and cannot be saved, this may have negative impacts, triggering the insolvency of the cross-border company. An instrument limited to cross-border insolvencies only would not solve the single market problems, nor would it be feasible for investors to determine in advance the cross-border or domestic nature of debtor’s future potential financial difficulties.

    The proposal goes beyond matters of judicial cooperation and establishes substantive minimum standards. For these reasons, it would not be appropriate to use Article 81 as a legal basis. Several Members States took or have taken action independently and have recently enacted or started preparatory work to adopt new rules to improve the preventive restructuring and second chance framework. However, these national rules differ widely in content and, as a result, provide an uneven level of transparency and protection for investors. Investors may be obstructed from investing cross-border because the costs of doing so are much higher than they need to be.

    If the EU does not act, it is to be expected that other Member States reforming existing restructuring and second chance frameworks or introducing such frameworks for the first time will follow this divergent trend. This proposal is also designed to prevent such divergent legislative developments and consequent obstacles in the future.

    The official text can be found here.





  • Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings

    On 20 May 2015 the European Parliament and the Council enacted the EU Regulation No. 848/2015 on insolvency proceedings, published on 5 June 2015 in the Official Journal of the European Union L 141/19.

    > more info

    The Regulation entered into force on 25 June 2015 but will be applicable to relevant insolvency proceedings from 26 June 2017, recasting the previous discipline.

    The Regulation implements a new ‘rescue and recovery’ perspective on insolvency, considering insolvency not only as liquidation but also facilitating the survival of businesses and provide a second chance for entrepreneurs. The new rules are aimed to make cross-border insolvency proceedings more “efficient and effective”, to improve the proper functioning of the internal market, and discouraging abusive “forum shopping”. In light of these objectives, the Regulation 2015/848 implements a number of changes in the discipline of cross-border insolvency proceedings.

    Therefore the Regulation includes provisions governing jurisdiction for opening insolvency proceedings and actions which are directly derived from insolvency proceedings and are closely linked with them. The Regulation also contains provisions regarding the recognition and enforcement of judgments issued in such proceedings, and provisions regarding the law applicable to insolvency proceedings. In addition, the Regulation lays down rules on the coordination of insolvency proceedings which relate to the same debtor or to several members of the same group of companies.

    Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings and actions related to such proceedings are excluded from the scope of Regulation (EU) No 1215/2012 of the European Parliament and of the Council ( 4 ). Those proceedings are covered by this Regulation. The interpretation of this Regulation avoids as much as possible regulatory loopholes between the two instruments. However, the mere fact that a national procedure is not listed in Annex A to this Regulation does not imply that it is covered by Regulation (EU) No 1215/2012.

    In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having crossborder effects, it is necessary, and appropriate, that the provisions on jurisdiction, recognition and applicable law in this area are contained in a Union measure which is binding and directly applicable in Member States.

    This Regulation apply to insolvency proceedings which meet the conditions set out in it, irrespective of whether the debtor is a natural person or a legal person, a trader or an individual. Those insolvency proceedings are listed exhaustively in Annex A. In respect of the national procedures contained in Annex A, this Regulation apply without any further examination by the courts of another Member State as to whether the conditions set out in this Regulation are met. National insolvency procedures not listed in Annex A are not covered by this Regulation.

    The official text can be found here.





  • Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings

    29 May 2000 the European Council enacted the (EC) No 1346/2000 on insolvency proceedings, published on 30 June 2000 in the Official Journal of the European Union L 160/1.

    > more info

    The EU Council enacted the Regulation (EC) No 1346/2000 on Insolvency Proceedings on 29 May 2000, but the regulation did not become law before 31 May 2002. The Regulations aim is to create a framework for the commencement of proceedings and for the automatic recognition and cooperation between the different member states of the European Union. The Insolvency Regulation does not seek to harmonise insolvency laws between the different member states though.

    One of the most important principles of the Regulation is the concept of a centre of main interest (or “COMI”). Thereby the definition of the COMI is left to member states in their implementation of the Regulation. Paragraph (13) of the preamble states though: ‘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.’ If the COMI of an entity is outside of the European Union the insolvency proceedings are not subject to the Regulation. For companies an legal persons the Regulation contain a presumption that the registered office will be the COMI of the company. But this presumption can be rebutted.

    The Regulation does not contain a definition of insolvency. Though it defines insolvency proceedings as being ‘collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator’. Article 3 divides proceedings into main proceedings and territorial proceedings. Where the centre of a debtor’s main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State. The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.

    One of the concerns which has been expressed in relation to the EC Regulation is that (other than a reference to the European Court of Justice) there is no mechanism for determining which set of proceedings are to be regarded as the main proceedings if two or more jurisdictions claim that their own proceedings are the main proceedings.

    The official text can be found here.