Breaking Up Is Hard to Do – What Brexit Means for UK Insolvency and Restructuring Law

2021 ◽  
Vol 18 (3) ◽  
pp. 338-376
Author(s):  
Gerard McCormack
Keyword(s):  
Automatic Recognition ◽  
Private International Law ◽  
The European Union ◽  
Insolvency Law ◽  
Eu Member States ◽  
Insolvency Regulation ◽  
Corporate Restructurings ◽  
The Uk ◽  
Insolvency Proceedings ◽  
The Eu

Abstract This paper asks whether the UK can maintain its insolvency and restructuring pre-eminence post Brexit i. e. after Britain’s departure from the European Union (EU). In the past 20 years or so, the UK is said to have become the insolvency and restructuring capital of Europe or in less politically correct terms, the bankruptcy brothel of Europe. In part, this is because of the European Insolvency Regulation which provides for automatic recognition of insolvency proceedings opened in a EU Member State in the other EU Member States. Such proceedings may make provision for the discharge of debts and the restructuring of financial obligations.The specific insolvency law regime is part of a more general European Private International Law framework. With Brexit, the UK has now left this framework without any negotiated replacement agreement, a so-called ‘skinny’ Brexit. The loss of the ability to deal with insolvencies and corporate restructurings through a single process, with automatic recognition across the EU, may make it more complex, lengthy and expensive to resolve cross-border cases. It gives rise to the prospect of parallel proceedings in different jurisdictions. The paper also addresses how any disadvantages associated with the ‘skinny’ Brexit may be alleviated.

scholarly journals The Rise and Fall of Regulatory Competition in Corporate Insolvency Law in the European Union

2019 ◽  
Vol 20 (3) ◽  
pp. 547-566 ◽  
Author(s):  
Horst Eidenmüller
Keyword(s):  
European Union ◽  
Regulatory Competition ◽  
The European Union ◽  
Insolvency Law ◽  
Insolvency Regulation ◽  
Corporate Restructurings ◽  
Dominant Market Position ◽  
Market Leader ◽  
Corporate Insolvency ◽  
The Uk

Abstract In this article, I discuss the rise and fall of regulatory competition in corporate insolvency law in the European Union. The rise is closely associated with the European Insolvency Regulation (EIR, 2002), and it is well documented. The UK has emerged as the ‘market leader’, especially for corporate restructurings. The fall is about to happen, triggered by a combination of factors: the recasting of the EIR (2017), the European Restructuring Directive (ERD, 2019) and Brexit (2019). The UK will lose its dominant market position. I present evidence to support this hypothesis.

scholarly journals Cross-Border Insolvency Law in Europe: Present Status and Future Prospects

2017 ◽  
Vol 11 (1) ◽  
pp. 67
Author(s):  
Bob Wessels
Keyword(s):  
National Court ◽  
Private International Law ◽  
Insolvency Law ◽  
Legal Concept ◽  
International Jurisdiction ◽  
Cross Border ◽  
European Court ◽  
Insolvency Regulation ◽  
Insolvency Proceedings ◽  
The Eu

In May 2007 the European countries celebrated the first lustrum of the EU Insolvency Regulation (1346/2000). This article describes where Europe stands with its model which is based on well known theories of private international law for dealing with cross-border insolvencies. The EU Insolvency Regulation provides for a national court to exercise international jurisdiction to open insolvency proceedings. The basis for international jurisdiction is the debtor’s “centre of main interests” or COMI. The two most important cases decided by the European Court of Justice (17 January 2006 Staubitz Schreiber and 2 May 2006 Eurofood) are discussed. The article further analyses the regulation’s legal concept and its procedural context and explains that 'financial institutions' are not covered by the Insolvency Regulation, but by separate directives (2001/17; 2001/24). After having taken stock several suggestions are submitted for improvement of the system of cross-border insolvency in Europe.

Pre-departure Integration Strategies in the European Union: Integration or Immigration Policy?

2011 ◽  
Vol 13 (1) ◽  
pp. 1-30 ◽  
Author(s):  
Kees Groenendijk
Keyword(s):  
International Law ◽  
Policy Instrument ◽  
The European Union ◽  
Political Debate ◽  
Member States ◽  
Eu Member States ◽  
Legal Constraints ◽  
Integration Strategies ◽  
The Uk ◽  
The Eu

AbstractSeveral States require immigrants from outside the EU to participate in language or integration courses after arrival. In recent years, some EU Member States made passing a language test (Netherlands and Germany) or participating in a language course (France) a condition for a visa for family reunification for immigrants from certain third countries. Denmark and the UK introduced a similar requirement in 2010. The focus of his article is on three aspects: the political debate, the legal constraints and the effects. Firstly, the development of the pre-departure integration strategies is analyzed. What was the rationale behind the introduction and does is vary between Member States? Secondly, the legal constraints of EU and international law are discussed. Finally, the results of the first studies evaluating this policy instrument are presented. Is pre-departure a good predictor for immigrant’s ability to integrate? Does it actually assist integration, and what are the unexpected or counterproductive effects?

scholarly journals THE HARMONIZATION OF THE AVOIDANCE RULES IN EUROPEAN UNION INSOLVENCIES

2016 ◽  
Vol 66 (1) ◽  
pp. 79-105 ◽  
Author(s):  
Andrew Keay
Keyword(s):  
European Union ◽  
Insolvency Law ◽  
Member States ◽  
European Regulation ◽  
Legal Proceedings ◽  
Eu Member States ◽  
Cross Border ◽  
Insolvency Proceedings ◽  
The Eu

AbstractCross-border transactions and resultant legal proceedings often cause problems. One major problem is knowing which law should govern the transaction and any legal proceedings. Cross-border insolvencies in the EU are subject to the European Regulation on Insolvency Proceedings (EIR) but this legislation does not determine which substantive insolvency law rules apply in a given insolvency. There are many differences in the insolvency rules applicable in the various EU Member States and this has caused concern in relation to the avoidance of transactions entered into by an insolvent prior to the opening of insolvency proceedings. In light of this, the paper examines options to address divergence between national avoidance rules. One option, harmonization, is analysed as well as its possible benefits and drawbacks.

scholarly journals THE EU COMMISSION'S PROPOSAL TO REVISE THE BRUSSELS IIa REGULATION: SHORTCOMINGS OF THE “OVERRIDING RULE”

TEME ◽  
2019 ◽  
pp. 901
Author(s):  
Sanja Marjanovic
Keyword(s):  
The State ◽  
Private International Law ◽  
The European Union ◽  
Best Interest ◽  
Member States ◽  
Child Abduction ◽  
Eu Member States ◽  
Eu Membership ◽  
The Republic ◽  
The Eu

As the procedure for the revision of the Brussels IIa Regulation is currently pending in the European Union, this paper focuses on the two issues which are correlated through the so-called “overriding rule” mechanism. The first problem concerns the proceeding on the return of the wrongfully removed or retained child involving two EU Member States – the State of refuge and the State where the child was habitually resident immediately before the abduction. The second one tackles the proceeding, currently regulated in the Brussels IIa, on the rights of custody (parental responsibility) when the return of the child was refused in the EU State on the grounds of Art. 13 of the Hague Child Abduction Convention. The proposals for the revision of the Brussels IIa Regulation heavily involve these issues. In that respect, the author indicates certain shortcomings and inconsistencies of the amendments proposed by the European Commission in the Proposal to Revise the Brussels IIa Regulation (2016) and the latest compromise solutions suggested by the Presidency to the Council in the General Approach to the Recast of Brussels IIa (2018). At the same time, the paper suggests two possible ways in which the balance between the principle of mutual trust between the EU Member States and the principle of the child's best interest could be better balanced. From the perspective of Private International Law of the Republic of Serbia, the revision of the Brussels IIa Regulation is important in view of Serbia’s candidate status for EU membership and the need to keep an eye on changes to the secondary EU legislation.

scholarly journals Retail Payments Strategy for the EU versus the challenges of the payment sector

2021 ◽  
Vol 20 (3) ◽  
pp. 617-640
Author(s):  
Michał Polasik ◽  
Paweł Widawski ◽  
Grzegorz Keler ◽  
Agnieszka Butor-Keler
Keyword(s):  
The European Union ◽  
Eu Member States ◽  
The Future ◽  
Challenges And Opportunities ◽  
Depth Study ◽  
Payments Systems ◽  
Payment Services ◽  
The Uk ◽  
Retail Payments ◽  
The Eu

Motivation: The payment services sector has become one of the main areas for the development of financial innovation and the key element of the digital economy. However, the payment services market in the European Union (called the European Payments Market) is still fragmented along national borders, insufficiently integrated, and facing several challenges. Therefore, the newly announced Retail Payments Strategy for the EU is a document of great importance for the future of the entire EU economy, and deserves in-depth study. Aim: The purpose of this paper is to assess whether the trends and challenges identified by the European Commission in the Retail Payments Strategy, and the general directions and proposed actions presented in this document, appropriately reflect the challenges faced by the European payment market. Results: A comparative analysis of the Strategy’s assumptions and proposed actions was conducted, in relation to the identified challenges of the payment sector. The empirical data were derived from a survey of 202 experts from all EU member states, and the UK, Norway and Switzerland, covering all types of bank and non-bank payment market players. The analysis confirmed that the Strategy identified the main challenges and opportunities, in line with the results of the expert survey: the need for further development of open banking; cross-border integration and development of instant payments systems; and ensuring access to the banking payment infrastructure, including contactless and NFC mobile payments. However, the proposed directions of action in selected areas have not been sufficiently rationalised, and most of the actions have been left to be specified in the future. In addition, the Strategy relies mostly on the use of regulatory tools that may limit innovativeness. Although the Commission and the surveyed experts agreed in recognising the challenges related to the increasing role of BigTechs in the payment sector, no comprehensive solution addressing the related challenges was proposed in the Strategy.

scholarly journals Konsekwencje brexitu w dziedzinie prawa prywatnego międzynarodowego

2020 ◽  
pp. 138-158
Author(s):  
Sylwia Majkowska-Szulc
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Member State ◽  
International Law ◽  
Private International Law ◽  
The European Union ◽  
The United Kingdom ◽  
The Future ◽  
The Uk ◽  
The Eu

Brexit is a unique phenomenon as no Member State has ever expressed the will to leave the European Union. Never before had the in-depth impact of a Member State withdrawal been analysed. The issue has started to be analysed after the referendum in which the British voted in favour of leaving the European Union. The topic of the potential consequences of Brexit in the field of private international law concerns, inter alia, national jurisdiction in civil and commercial matters, mutual recognition and enforcement of judgments, specific procedures of EU uniform law, judicial cooperation between Member States or the functioning of the e-Justice Portal and dynamic forms. Before a given Member State withdraws from the EU, interested parties should have been informed, inter alia, of how pending proceedings will be conducted starting with the withdrawal day, what about proceedings initiated at the date of withdrawal or later on, and what about the rulings of the courts of the applicant state covered by the exequatur procedure before the withdrawal. Therefore, the primary purpose of the article is to determine the framework for the future relationship between the EU and the UK in the field of private international law. An additional aim of this paper is to better prepare natural and legal persons for the new post-Brexit reality. European integration has brought Europe peace and prosperity and enabled unprecedented cooperation in all areas of common interest. Following the withdrawal decision, the state and its citizens cease to benefit from the acquis communautaire. In fact, the United Kingdom left the European Union on 31 January 2020. As far as private international law is concerned, the United Kingdom has become a third country. Subsequently, on 1 February 2020 a transition period has started and it aims to provide more time for citizens and businesses to adapt. The negotiations on the future partnership between the EU and the UK has started in March 2020, but they were postponed due to the coronavirus COVID-19 pandemic. The relationship between the United Kingdom and the European Union is sometimes compared to love that has passed away, but former lovers must continue to meet from time to time to manage certain common affaires. The analysis of the topic leads to the conclusion that, in fact, Brexit is a unique phenomenon that has no added value.

scholarly journals EU–UK institutional arrangements and Brexit: a view from Switzerland

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Yuliya Kaspiarovich
Keyword(s):  
Trade Agreement ◽  
Institutional Arrangements ◽  
Eu Law ◽  
The European Union ◽  
Cooperation Agreement ◽  
Eu Member States ◽  
Close Relationship ◽  
The One ◽  
The Uk ◽  
The Eu

In 1972 the UK signed an accession treaty with the EU while Switzerland and the EU concluded a free trade agreement. Nowadays, both countries have a very close relationship with the EU and are not (or not anymore) EU Member States. This article aims to analyse two complex legal paths taken by countries able but not willing (or no longer willing) to be part of the EU through institutional arrangements they have already negotiated or are currently negotiating with the EU. On the one hand, the UK was part of the EU legal order and is now extracting itself from the realm of EU law while switching to relations with the EU based on international law. On the other hand, Switzerland has built its relations with the EU on numerous bilateral agreements based on EU law without establishing a homogeneous institutional mechanism, which the EU has been insistently demanding since 2013. These two situations are paradoxically similar as for both of them the design of institutional arrangements depends on the degree of integration with/extraction from EU law. A comparison between the EU–UK withdrawal agreement, the EU–UK Trade and Cooperation Agreement (TCA) and the EU–Switzerland draft institutional agreement, as proposed in this article, confirms that the degree of institutional flexibility that the EU is able to offer to a third country with which it concludes an agreement is dependent on whether that agreement is based on EU law, and in particular, EU internal market law. This article argues that depending on the nature of law the agreement is based on, from an EU perspective variations in the role of Court of Justice of the European Union (CJEU) and/or of an arbitral tribunal may make sense, but this is not the case when one takes an outside perspective.

scholarly journals What Remains after Brexit? A View from the Outside

2021 ◽  
Vol 9 (2) ◽  
Author(s):  
Filip Kokotovic ◽  
Peter Kurecic
Keyword(s):  
European Union ◽  
Economic Development ◽  
Foreign Policy ◽  
The European Union ◽  
Eu Member States ◽  
The United Kingdom ◽  
The Uk ◽  
Future Economic Development ◽  
Political Divide ◽  
The Eu

The British referendum result to opt for exiting the European Union (EU) has left both the United Kingdom (UK), as well as the rest of the EU with questions regarding the future of the integration and their future economic development. While the EU member-states present a united front in regards to the leave process, there are deeply rooted divisions on all other relevant policy questions. The issues of migration, foreign policy, and the level of cohesion within the EU itself represent the questions where there is little or no consensus. The paper concludes that both the UK and the EU need to address a deep political divide and find a way to coexist in the aftermath of Brexit.

scholarly journals Impact of Brexit on voting power in Council of the European Union

2020 ◽  
Vol 3 (1) ◽  
pp. 192-197
Author(s):  
Jakub Gábor
Keyword(s):  
European Union ◽  
Public Discourse ◽  
Three Dimensions ◽  
The European Union ◽  
Member States ◽  
Voting Power ◽  
Eu Member States ◽  
The Uk ◽  
The Impact ◽  
The Eu

AbstractThe United Kingdom has left the European Union on 31 January 2020. Discussions that preceded such a move were conducted in three dimensions: they pertained a post-Brexit relationship between the UK and EU, future conduct within the UK and the one within the EU. Whilst public discourse has been dominated by the first two, this paper approaches the third one – on how Brexit has affected relationships between remaining 27 EU Member States. Stemming from the calculation of Banzhaf indices, it assesses the impact of Brexit on the voting power of remaining Member States in the Council of the EU – arguably the most important body within the EU institutional architecture – and identifies which countries are going to record the most significant gains and losses in this respect.

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