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An Outline of the EU Regulation on Insolvency Proceedings (P.A

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An Outline of the EU Regulation on Insolvency Proceedings (P.A An Outline of The EU Regulation on Insolvency Proceedings Sandy Shandro Freshfields Bruckhaus Deringer June 2003 (000000-0000) CONTENTS PART ONE - A GUIDE T O THE REGULATION.................................................. 1 INTRODUCTION ..........................................................................................................1 SCOPE OF APPLIC ATION OF THE REGULATION ............................................................2 PRINCIPAL PROVISIONS OF THE REGULATION.............................................................4 IMPACT OF THE REGULATION.....................................................................................9 PART TWO – A NOTE ON BRAC RENT–A-CAR INTERNATIONAL INC..................................................................................................................12 LD553456/6+ (000000-0000) Page i PART ONE - A GUIDE T O THE REGULATION INTRODUCTION On 29 May 2000 the EU Council adopted the Regulation on Insolvency Proceedings (the Regulation). The Regulation came into force on 31 May 2002. To a great extent, the Regulation replicates the text of the draft EC convention on insolvency proceedings 1995 (the Convention). The Convention failed to receive the required unanimous support as, due to the underlying territorial concerns over Gibraltar, the UK failed to sign within the prescribed time. The Convention therefore lapsed on 23 May 1996. The adoption of the Regulation in 2000 was welcome news for the member states of the EU, some of which had been working towards pan-European consensus on insolvency issues for the past 30 years. The Regulation aims to introduce uniform conflicts of law rules for insolvency proceedings and connected judgments. This will help address the difficulties that arise when an insolvency involves a number of different European jurisdictions. It does not, however, seek to harmonise substantive law or policy as between different EU countries. LD553456/6+ (000000-0000) Page 1 SCOPE OF APPLICATION OF THE REGULATION The Regulation came into force on 31 May 2002. With the exception of Denmark, the Regulation is directly applicable in all member states. In accordance with its Protocol to the Treaty of Amsterdam (1 May 1999), Denmark does not participate in the Regulation; however, Denmark has indicated that it will introduce parallel legislation. The objective of the Regulation is to establish common rules on cross-border insolvency proceedings, based on principles of mutual recognition and co-operation. It replaces various conventions between member states insofar as they relate to insolvency proceedings. Under article 1(1) the Regulation applies to ‘collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator’. Annexe A lists the insolvency proceedings covered by the Regulation, which, as currently drafted, applies to the following UK proceedings: ?? winding up by, or subject to the supervision of, the court; ?? creditors’ voluntary winding up (with confirmation by the court); ?? administration; ?? voluntary arrangements under insolvency legislation (both company and partnership voluntary arrangements); and ?? bankruptcy and sequestration, in respect of, as appropriate, individual debtors, sole traders and most corporate entities. Under article 45, the EU Cou ncil may, by qualified majority, modify the Annexes to the Regulation and could therefore extend the list of insolvency proceedings covered by the Regulation. The moratorium provisions introduced by the Insolvency Act 2000, which aim to facilitate the chances of a company in financial difficulties putting together a voluntary arrangement, fall under the scope of the Regulation. The recently proposed moratorium provisions with respect to schemes of arrangement under section 425 of the Companies Act 1985 would not fall within the Regulation’s scope, as the Regulation does not apply to those schemes of arrangement unless the scheme is part of an administration. The Regulation does not apply to administrative or other receiverships. Receiverships are excluded on the basis that they are not ‘collective’ insolvency proceedings. Also, the Regulation does not apply to the administration of the insolvent estate of a deceased person. Insurance undertakings, credit institutions, investment undertakings holding funds or securities for third parties and collective investment undertakings are specifically excluded from the scope of the Regulation. The rationale for these exclusions is that such corporate entities are subject to special arrangements and their national supervisory authorities have wide-ranging powers of intervention. EU finance ministers have also reached agreement on the proposed Council directive on the LD553456/6+ (000000-0000) Page 2 reorganisation and winding up of credit institutions (the credit institutions directive) and the proposed Council directive on the winding up of insurance undertakings (the insurance directive). These two directives were formally adopted in 2001. The Regulation does not have retrospective effect. It applies only to insolvency proceedings opened after the Regulation comes into force. Further, any acts performed by a debtor prior to the Regulation coming into force continue to be governed by the law that was applicable to them at the time they were carried out. In broad terms, the Regulation provides that main insolvency proceedings are to be opened in the member state where the debtor has its ‘centre of main interests’. These proceedings will have universal scope and will encompass all of the debtor’s assets and affect all creditors, wherever located. The Regulation also provides that secondary proceedings may be opened in one or more other member states. Such proceedings will be limited to the assets in that state and will run in parallel to the main proceedings. Any independent territorial insolvency proceedings opened prior to the main insolvency proceedings may be converted into secondary proceedings at the behest of the insolvency office holder if this proves to be in the interests of the creditors of the main proceedings. The Regulation is of assistance princ ipally in those cases where a company or business has a branch or presence, or significant assets or activity, in more than one EU member state. Subsidiaries, being separate corporate entities, would each be subject to a different set of main insolvency proceedings. LD553456/6+ (000000-0000) Page 3 PRINCIPAL PROVISIONS OF THE REGULATION MAIN PROCEEDINGS AND THE ‘CENTRE OF MAIN INTERESTS’ The Regulation provides for two basic types of insolvency proceedings: main proceedings of universal scope and local proceedings of territorial scope; depending on whether they occur prior to or post commencement of the main proceedings, local proceedings are categorised as independent territorial or secondary proceedings, respectively. Article 3 of the Regulation confers the jurisdiction to open main insolvency proceedings. Member states are free to designate the national courts that may open insolvency proceedings. These insolvency proceedings will be recognised and effective in all other member states without further formalities. They will encompass all the debtor’s assets on a worldwide basis, save where the Regulation specifies otherwise. Main proceedings may take the form of either reorganisation or winding up proceedings. The appointed insolvency office holder will have the authority to act in all member states, provided that he complies with the laws of the local state. Officeholders are referred to as liquidators under the Regulation. ‘Liquidator’ is a defined term under the Regulation and means any person or government body whose function is to adm inister or liquidate the debtor’s assets or to supervise the administration of the debtor’s affairs. The authorised persons and bodies are listed in Annexe C of the Regulation. In the UK, this includes liquidators, administrators, supervisors of voluntary arrangements, the official receiver, trustees and judicial factors. The courts with jurisdiction to open the main insolvency proceedings are those of the member state where the debtor has its ‘centre of main interests’. In relation to a company, there is a rebuttable presumption that the place of the registered office is the centre of its main interests. The preamble to the Regulation states that 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. Early cases suggest a willingness on the part of the courts to accept that the presumption is rebutted in a particular case (see Enron Directo ). In a previous draft of the pream ble, the centre of main interests was defined as the place where the debtor regularly has very close contact, where his main commercial interests are concentrated and the bulk of his assets are situated. It now appears that a more stringent test should apply. Despite the presumption and the explanation in the preamble, it may be difficult to predict what factual criteria would constitute a ‘centre of main interests’. Cases discussed in Part Two of this paper provide the beginnings of a guide. In an increasingly mobile business environment, it is possible that the ‘centre of main interests’ may shift with time or that two or more states could qualify as the ‘centre of main interests’. Nevertheless, only one set of main proceedings is permitted. Cases decide d since the Regulation has come
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