Some news and views from UK academia and practice on the law, policy and practice of insolvency
Tuesday, 7 July 2009
Insolvency Service seeking views on the European Insolvency Regulation - deadline 29th September 2009
The Insolvency Service has sent out a request for views on the European Insolvency Regulation (EIR). The communication notes:
"Evaluation of Council Regulation (EC) No 1346/2000 of 29 May 2000 on Insolvency Proceedings (“the EC Insolvency Regulation”)
Please find attached a questionnaire [available from the Insolvency Service - website - http://www.insolvency.gov.uk/] which seeks information on the experiences of individuals working with the EC Insolvency Regulation to assess whether or not it meets its objectives.
The EC Insolvency Regulation was adopted by the Council of the European Union on 29 May 2000, becoming operative on 31 May 2002. The Regulation (which has direct effect in Member States) aims to provide an ordered regime governing the administration of the affairs of an insolvent whose centre of main interests is in the EU, recognising that cross border issues can arise in insolvency proceedings. Its principal objective is that insolvency proceedings should operate efficiently and effectively. It aims to achieve this principal objective by ensuring that:
• measures to be taken regarding an insolvent debtor’s assets are co-ordinated where the activities of an undertaking have a cross-border effect, and
• incentives for parties to transfer assets or judicial proceedings from one Member State to another, seeking to obtain a more favourable legal position (forum shopping), are avoided.
The European Commission is required to report on the Regulation by 1 June 2012, and, in preparation, intends to launch a study of the Regulation in 2010. In order that we may be in a position to inform and influence the Commission's report, we are carrying out our own evaluation of the Regulation in advance of the Commission's study.
We wish to gather information on the experiences of individuals working with the Regulation in practice to assess whether or not it meets its objectives, focusing on the following 7 main areas:
General experience of operating the provisions
Centre of Main Interests (which determines where main proceedings may be opened)
The interaction of main and secondary proceedings
The applicable law in any given case
The opening of proceedings
Group companies, and
General technical points.
A response form can be found at Annex A (attached) and responses should be sent to me please by 29 September 2009. Where this questionnaire is being issued to you as the named contact for a representative group, I would be grateful if you could forward to your fellow group members as appropriate and co-ordinate responses. I am happy to deal with any questions which may arise and thank you in advance for your participation in this evaluation exercise."
I am not hugely familiar with the workings of any other Government agencies, but it seems to me that the Insolvency Service do a very thorough job of ongoing evaluation, research and general proactive thinking. This is another example of their continuing efforts to improve UK insolvency laws. I also seem to remember that Professor Ian F. Fletcher spoke about these issues at some length in a response to a lecture on the EIR by Mr Nick Howard (head of policy at the Insolvency Service) at last years Insolvency Service Research Conference. This is certainly a hot topic and one which has featured regularly in the pages of Insolvency Intelligence over the last couple of years. I am sure there will be a lot of responses. It will be interesting to see the report in due course.