Recast Regulation on Insolvency: materials available on LexisPSL R&I

From 26 June 2017, the bulk of the provisions of the Recast Regulation on Insolvency 848/2015 come into force and replace the EC Regulation on Insolvency 1346/2000. We look at the materials available on LexisPSL R&I for R&I lawyers.

Effective date

In one of the biggest changes for cross-border R&I lawyers in the last 17 years, substantial reforms are made to the Regulation (EC) 1346/2000 on insolvency proceedings (the EC Regulation on Insolvency) under the Regulation (EU) 848/2015 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (the Recast Regulation).

Although the Recast Regulation entered force on 26 June 2015, the majority of the provisions are only effective from 26 June 2017 onwards—this was to allow Member States to familiarise themselves with the new provisions (a Corrigendum was published by the EC on 21 December 2016 clarifying that the Recast Regulation only applies to insolvency proceedings opened from 26 June 2017; the previous text said 'proceedings opened after 26 June 2017'). The EC Regulation on Insolvency continues to apply to proceedings opened before 26 June 2017 (Recast Regulation, art 84(2)).

Summary of the main changes

Some of the main changes include:

  • wider scope to include rescue and pre-insolvency proceedings (proceedings for the purpose of rescue, adjustment of debt and reorganisation, including debtor-in-possession proceedings) as well as liquidation
  • a new definition of centre of main interests (COMI) and a positive obligation on courts to examine COMI and determine whether proceedings are main or just territorial
  • an express right for debtor/creditors to challenge main proceedings on jurisdictional grounds
  • wider jurisdiction for related civil or commercial claims to be brought in the defendant's domicile rather than where insolvency proceedings are located
  • a new definition of establishment
  • the introduction of synthetic secondaries
  • creating national electronic searchable databases and linking them up to create a central European database
  • an obligation on insolvency practitioners (IPs) and courts who are involved with main and secondary proceedings (and also group companies) to communicate and co-operate
  • the introduction of a new concept called 'group co-ordination proceedings'. Any IP appointed over a group company may request the opening of group co-ordination proceedings by filing a request containing certain information at any court having jurisdiction over the insolvency proceedings of any group company
  • safeguards to prevent forum shopping and a distinction between good and bad forum shopping
  • rules on location of assets (eg registered shares, cash in accounts with financial institutions, financial instruments)
  • the ability of the main IP to refuse consent to dissolution of a company under secondary proceedings where main proceedings are still in progress
  • the ability to lodge claims in any language and the introduction of a standard claim form

Materials available on LexisPSL R&I

LexisPSL R&I has produced a full suite of over 15 Practice Notes under the subtopic 'Recast Regulation on Insolvency':

  • Recast Regulation on Insolvency—overview
  • Recast Regulation—main, secondary and territorial proceedings
  • Recast Regulation—establishing the centre of main interests (COMI) for corporates
  • Which jurisdiction in restructuring and insolvency cases
  • Insolvency exception in the Lugano Convention, the Brussels Convention, Brussels I, Brussels I (recast), the Hague Convention
  • Recast Regulation—which law applies
  • Recast Regulation—effect of cross-border recognition under the regulation
  • Recast Regulation—treatment of groups and group co-ordination proceedings
  • Recast Regulation—how creditors lodge claims
  • Hotchpot (or the equality rule) for insolvency lawyers
  • Recast Regulation—personal insolvency and COMI
  • List of available cross-border insolvency and restructuring tools by country
  • Recast Regulation—table comparing application and effect of cross-border tools
  • Recast Regulation—table of differences between main and secondary proceedings
  • Recast Regulation—table comparing the Recast Regulation and the UNCITRAL Model Law on insolvency
  • Recast Regulation on Insolvency—destination table

Updates to existing content

We have updated the vast majority of our core content in light of the Recast Regulation. We have achieved this in the following ways:

  • we have created a whole new subtopic for the Recast Regulation
  • we have amended most of our other content (Practice Notes, Precedents, Checklists) to reflect the position both under the EC Regulation on Insolvency 1346/2000 and the Recast Regulation on Insolvency 848/2015. In light of the transitional provisions, we intend to leave references to the EC Regulation on Insolvency in our core content for a period of time
  • the materials in the EC Regulation on Insolvency subtopic will remain available in Lexis®PSL R&I. We will not update these in respect of any case law or other developments that occur after 26 June 2017 (we have inserted stop presses at the top of each such document to serve as a warning)

INSOL Europe: European Insolvency Regulation Case Register—guidance from other countries

With EC case law, decisions of the CJEU bind all Member States, though where the CJEU has given limited guidance on a particular area, courts may look to decisions of other courts in the Member States for guidance, although they will not be binding. The INSOL Europe Case Register contains summaries of over 500 judgments, from the CJEU and first instance and appeal courts of the EU Member States, that consider a significant point relating to the EC Regulation on Insolvency or, from 26 June 2017 onwards, the Recast Regulation.

Further Reading

If you are a LexisPSL Subscriber, click the links below for further information:

Recast Regulation—main, secondary and territorial proceedings

Recast Regulation—establishing the centre of main interests (COMI) for corporates

 

Not a subscriber? Find out more about how LexisPSL can help you and click here for a free trial of LexisPSL Restructuring and Insolvency.First published on LexisPSL Restructuring and Insolvency

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