JCOERE Judicial Cooperation Supporting Economic Recovery in Europe Report 2: Report on Judicial Cooperation and European Harmonisation and Integration in Preventive Restructuring

DG Justice Programme Project No. 800807

250 Pages Posted: 4 Jun 2021

See all articles by Irene Lynch Fannon

Irene Lynch Fannon

University College Cork - School of Law

Jennifer L. Gant

University of Derby - School of Law and Criminology

Aoife Finnerty

University College Cork - School of Law

Molly O’Connor

JCOERE Consortium

Date Written: September 21, 2020

Abstract

The JCOERE Project, funded by the European Commission’s DG Justice Programme (2014-2020), addresses two aspects of the European Union’s strategy to respond to the problems of cross-border insolvency within the increasingly integrated internal market. The European Commission’s strategy is described in the Commission Recommendation 2014/135/EU on a new approach to business failure. The first aspect concerns the co-operation obligations that have been imposed on all domestic Member State courts and judiciary under the European Insolvency Regulation (Recast) 2015/848 (EIR Recast). The second concerns the implementation, subsequent to the Preventive Restructuring Directive 2019/1023, of a preventive restructuring framework in the domestic law of all Member States.

The second JCOERE Report analyses the co-operation obligations arising from the EIR Recast, which are imposed on courts and practitioners in EU Member States to co-operate in cross-border insolvency and restructuring matters. The Report also undertakes a benchmarking of judicial utilization and awareness of best practice guidelines on co-operation that have been adopted by European and international organizations. This was achieved through engagement with judicial networks during a number of interactive workshops and through the distribution of a judicial survey to three focus groups comprised of members of the judiciary. This, together with JCOERE Report 1, has contributed to answering the overall project research question, which asks:

Based on existing experience with restructuring (e.g. Ireland), will obstacles to court co-operation arise from substantive rules, which are particular to preventive restructuring.

Will some of these obstacles to court co-operation be exacerbated in the preventive restructuring context, given that they pertain to existing procedural rules?

JCOERE Project Report 2 reflects the goals of Work package 3 of the Project and accordingly focusses on the courts, including judicial and administrative authorities, charged with approving and implementing restructuring plans and to which the co-operation obligations are addressed. The second Report considers the application of best practices for co-operation of cross-border preventive restructuring cases, judicial awareness of existing obligations and guidelines and judicial practice in this area. Report 2 also considers broader questions, such as differences in judicial culture across the EU Member States, how this impacts mutual trust and effective cooperation, and how the obligations and broader initiatives concerning judicial co-operation are fundamental to the question of European integration and harmonization.

The research in Report 2 also undertakes a comparative analysis of judicial co-operation in another federalized jurisdiction, undertaking a comparison between the European Union and the United States.

The JCOERE Project was led by a team at University College Cork School of Law in collaboration with a team at the University of Florence, Titu Maiorescu University in Romania and INSOL Europe.

The content of this document represents the views of the author only and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Keywords: Judicial Cooperation; Judicial Culture; Legal Culture; Preventive Restructuring; Corporate Rescue; Insolvency Law; Comparative Law; Preventive Restructuring Directive; Rescue Culture

JEL Classification: G3, K4

Suggested Citation

Lynch Fannon, Irene and Gant, Jennifer and Finnerty, Aoife and O’Connor, Molly, JCOERE Judicial Cooperation Supporting Economic Recovery in Europe Report 2: Report on Judicial Cooperation and European Harmonisation and Integration in Preventive Restructuring (September 21, 2020). DG Justice Programme Project No. 800807, Available at SSRN: https://ssrn.com/abstract=3855398 or http://dx.doi.org/10.2139/ssrn.3855398

Irene Lynch Fannon

University College Cork - School of Law ( email )

College Road
Cork, Cork T12 CC79
Ireland

HOME PAGE: http://research.ucc.ie/profiles/B012/ilynchfannon

Jennifer Gant (Contact Author)

University of Derby - School of Law and Criminology ( email )

Kedleston Road
Derby, Derbyshire DE22 1GB
United Kingdom

Aoife Finnerty

University College Cork - School of Law ( email )

College Road
Cork, County Cork
Ireland

Molly O’Connor

JCOERE Consortium

Ireland

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