CERIL Statement 2021-1 on identifying annex actions under Article 6(1) of the European Insolvency Regulation 2015
Initiated and chaired by Prof. Stephan Madaus (Martin Luther University, Germany) and Prof. em. Bob Wessels (Leiden University, the Netherlands), a CERIL Working Party conducted a survey on issues of international jurisdiction for individual legal cross-border actions that ‘derive directly from public collective insolvency proceedings and are closely linked with them’. To resolve uncertainty on these actions, conveniently called ‘annex actions’, CERIL proposes a concise work of reference to classify and distinguish between annex actions and non-annex actions.
In summary, the study found three types of annex action:
- (a) clear annex actions,
- (b) clear non-annex actions and
- (c) actions with relevant uncertainty about their classification.
The Report sets out in detail the categorisation in (a) and (b). The last category, under (c), has been given ample thought. This includes (i) actions brought by the insolvency practitioner in relation to the assumption or the termination of executory contracts, (ii) actions brought by an unsecured creditor against the debtor, also referred to as ‘action seeking a declaratory relief’, (iii) actions brought by secured creditors, (iv) actions concerning the return of property held by the debtor, and (v) action brought by the reinstated debtor after the termination of insolvency proceedings.
As a consequence, to overcome the existing level of uncertainty with time-consuming and costly disputes in civil proceedings, especially their characterisation as ‘annex action’, CERIL encourages litigators and courts to use the concise reference work as set out in its Report.
This Statement and Report were prepared by:
Reporters: Prof. Stephan Madaus & Prof. Em. Bob Wessels
Associate Researcher: Dr. Chiara Lunetti
The CERIL Statement 2021-1 can be downloaded here.
The CERIL Report 2021-1 can be downloaded here.