CERIL

On 21 November 2023, the Fourth Annual Conference of the Conference on European Restructuring and Insolvency Law (CERIL) took place. The meeing, chaired by Prof. em. Bob Wessels (Chair of CERIL), looked back on the first lustrum that was celebrated in 2023, and discussed recently completed and ongoing projects of CERIL.

Remarking on the first lustrum conference that took place in April 2023, in Leiden, Wessels inter alia announced that CERIL will be hosting a live conference in spring 2024 (a save the date to follow shortly). He did so before turning to the Working Party (WP) chairs who presented on the progress of their respective projects.

While the work around the 2024 European elections shall impact the European Commission’s legislative work and the further harmonisation of our European member’s national insolvency legislation, the WPs are working overtime analysing the current European and national legal frameworks. Therefore, a short overview was given on four projects, in a session chaired by Gert-Jan Boon:

• EU Group Coordination Proceedings (WP 9) – co-chair Prof. Andreas Geroldinger stated that the number of EU Group Coordination Proceedings is limited (or even currently not existing), as followed from an earlier project where the WP conducted  a comprehensive analysis of the advantages and disadvantages associated with such proceedings (and its current voluntary nature). Currently, they work on avenues for amendments to the legal framework of the EU Group Coordination proceedings, as required to make these “application-ready”. Additionally, the WP delves into the roles played by various stakeholders (such as, but not limited to, the insolvency practitioner) and their economic interests in the context of these proceedings. The WP aims to provide their next report on this topic in the first quarter of 2024.

• Mobility of Companies Facing Insolvency (WP 19) – the most recent interplay between company law and insolvency law can be identified under several provisions of the Mobility Directive 2019/2121, in the form as follows:
  
  “Member States may decide not to apply this Chapter to companies which are:
  (a) the subject of insolvency proceedings or subject to preventive restructuring frameworks;
  (b) the subject of liquidation proceedings […]”
  
  By way of a cross-border comparative research, co-chairs Prof. Jessica Schmidt and Prof. Juana Pulgar, explained that the WP analyses how the different Member States cope with this interplay under the Mobility Directive, and created 7 specific questions in this regard. The project aims to formulate recommendations to optimise the harmonisation of EU company law and insolvency law, fostering a balance between facilitating cross-border restructuring activities and addressing potential challenges or concerns within the diverse legal landscapes of Member States. They will enfold this research in 2024 and invite Conferees to participate in the WP.
   
• Restructuring and insolvency Curriculum (WP 18) – conferee Dr. Jennifer Gant, and co-chairs Dr. Nicoleta Mirela Nastasie and Prof. Reinout Vriesendorp introduce that the WP formulated a survey aimed at assessing the training programs available for members of judicial and administrative authorities in the different European Member States. The overarching objective of this initiative is to identify the current training needs and qualifications of judges. By understanding the existing landscape, the initiative aims to contribute to the enhancement of training programs and qualification standards tailored to the unique demands of this specialized legal domain.
  
  The preliminary results (on the basis of the 16 responses received so far) demonstrate the variety of training per jurisdiction, which, however, are not similar to each other (differences with regard to eligibility requirements, length, funding, etc.).
  
  To further understand the diversity in training between jurisdictions, responses are welcomed from more judges dealing with procedures concerning restructuring, insolvency, and discharge of debt from your jurisdiction.  
   
• Crypto-assets in insolvency (WP 16) – the formulation of CERIL's Statement 2023-3 on Crypto-assets in Restructuring and Insolvency, alongside the contemporary European legislative enactments pertaining to crypto-assets, notably MiCA and the DLT-regime, reflects an acknowledgment of the burgeoning indispensability of crypto-assets within the society.
  
  This WP is devoted to an examination of the existing insolvency legislation for the expanded implementation of crypto assets. Furthermore, co-chairs Prof. Paula Moffatt and Prof. Dominik Skauradszun explain that they have scrutinizes the extent to which the European Insolvency Regulation (Recast) is attuned to this evolving landscape, assessing whether the current regulatory framework is sufficiently adapted or necessitates further modifications to effectively accommodate the burgeoning role of crypto assets in these contexts.
  
  The statement and report on crypto-assets in insolvency is available here.

Lastly, a presentation is delivered by Prof. Jasnica Garasic. She discussed her joint project with Prof. Alexander Trunk on EU insolvency law and third countries. She highlighted that a crucial gap exists in the current legal framework, emphasizing that the European Insolvency Regulation (Recast) does not systematically address a structured approach to third-country relations. Insights from a local perspective are more than welcome in relation to the paper they are preparing on this topic, analysing the position of EU insolvency law and third countries.

Report by Domien Kriger (Dentons, Belgium)