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Journal articles on the topic 'Insolvency proceedings'
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1
Mevorach, Irit, and Adrian Walters. "The Characterization of Pre-insolvency Proceedings in Private International Law." European Business Organization Law Review 21, no. 4 (February 26, 2020): 855–94. http://dx.doi.org/10.1007/s40804-020-00176-x.
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AbstractThe decade since the financial crisis has witnessed a proliferation of various ‘light touch’ financial restructuring techniques in the form of so-called pre-insolvency proceedings. These proceedings inhabit a space on the spectrum of insolvency and restructuring law, somewhere between a pure contractual workout, the domain of contract law, and a formal insolvency or rehabilitation proceeding, the domain of insolvency law. While, to date, international insolvency instruments have tended to define insolvency proceedings quite expansively, discussion of the cross-border implications of pre-insolvency proceedings has barely begun. The question is whether pre-insolvency proceedings should qualify as proceedings related to insolvency for the purpose of private international law characterization. The risk is over-inclusivity of cross-border insolvency law, which, where it is based on universality and unity, might defeat contractual expectations. This article argues, however, that we should be slow to exclude pre-insolvency proceedings from cross-border insolvency law: these proceedings are initiated in the zone of insolvency, their effectiveness depends on a statutory mandate and not purely on private ordering, they interact and intersect with formal proceedings, and can benefit from the unique system developed by cross-border insolvency law. We suggest, though, that modified universalism (the leading norm of cross-border insolvency) and international insolvency instruments, should, and are able to, adjust to the peculiarities of pre-insolvency proceedings to address concerns about inclusivity and accommodate pre-insolvency proceedings adequately.
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Veterníková, Mária, and Ján Mišura. "Bankruptcy Trustee in Insolvency Proceedings as an Entrepreneur and as a Subject of the Proceeding." Studia commercialia Bratislavensia 4, no. 13 (January 1, 2011): 153–59. http://dx.doi.org/10.2478/v10151-011-0004-1.
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Bankruptcy Trustee in Insolvency Proceedings as an Entrepreneur and as a Subject of the Proceeding The article deals with the position and activities of bankruptcy trustee in bankruptcy proceeding, restructuring proceeding and in proceeding on debt relief. These proceedings are being called insolvency proceedings. The paper brings a closer look on conditions of trustee's activity and his/her activities in various types and stages of insolvency proceedings. The authors analyze the fact whether trustee's activity meets all attributes of enterprising.
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Braun, Susanne. "German Insolvency Act: Special Provisions of Consumer Insolvency Proceedings and the Discharge of Residual Debts." German Law Journal 7, no. 1 (January 1, 2006): 59–70. http://dx.doi.org/10.1017/s2071832200004405.
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Information about the insolvency of big enterprises such as Enron and Worldcom in the United States; Bremer Vulkan, Philip Holzmann, Babcock Borsig, CargoLifter, Walter Bau and “Ihr Platz GmbH & Co KG” in Germany; and discussion about the insolvency of States (e.g. Argentina) has awakened public interest in insolvency law and proceedings. Both the high number of insolvent enterprises and the increasing rate of consumer insolvency are shocking.The German Insolvency Act of 1999 created a uniform insolvency statute for all of Germany. In most cases, upon the instituting of insolvency proceedings, only small or no-insolvency estates were available. As a result, creditors only received average distributions of between three and five percent. Approximately three quarters of all insolvency procedures could not be instituted because of an insufficient insolvency estate. A large number of the insolvency proceedings carried out by the courts had to be terminated prematurely due to lack of assets. This deficiency in the law, referred to as the “bankruptcy of bankruptcy,” is to be remedied by the new Insolvency Act, as a failure in instituting insolvency proceedings is damaging confidence in the German economy.
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Keay, Andrew. "THE HARMONIZATION OF THE AVOIDANCE RULES IN EUROPEAN UNION INSOLVENCIES." International and Comparative Law Quarterly 66, no. 1 (November 16, 2016): 79–105. http://dx.doi.org/10.1017/s0020589316000518.
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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.
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Crhová, Zuzana, Zuzana Fišerová, and Marie Paseková. "Corporate Insolvency Proceedings: A Case of Visegrad Four." Acta Universitatis Agriculturae et Silviculturae Mendelianae Brunensis 64, no. 1 (2016): 235–43. http://dx.doi.org/10.11118/actaun201664010235.
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Insolvency proceeding and liquidation of bankrupt companies are important topics in days of economic slowdown which affected all economies after financial crisis. This paper aims to find main differences between insolvency proceedings in the countries of Visegrad four. The main goal is to describe insolvency law in member countries and then to compare it from the poin of view of main actors. This comparison can help to find which changes and ideas could be applied to improve and make more effective the Czech insolvency system. The countries of Visegrad four was selected because of their common history and similar economic development. First of all, the legal background of insolvency proceedings which is possible for legal entities in these countries is examined. Then this paper deals with insolvency proceedings from the point of view of their participants – creditors, debtors and insolvency administrator. We have found that insolvency proceedings in these countries are very similar but there is still some inspiration for the Czech insolvency system.
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Rodríguez Rodrigo, Juliana. "Bienes sujetos a un procedimiento secundario de insolvencia. Comentario a la sentencia del Tribunal de Justicia de la Unión Europea, de 11 junio 2015, Nortel, c-649/13 = Debtor’s assets falling within the scope of the effects of the secondary proceedings. Judgment of the Court (first chamber) of 11 june 2015, Nortel, case c-649/13." CUADERNOS DE DERECHO TRANSNACIONAL 9, no. 2 (October 5, 2017): 692. http://dx.doi.org/10.20318/cdt.2017.3898.
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Resumen: En esta sentencia, el Tribunal de Justicia contesta a una cuestión prejudicial que plantea un órgano judicial francés en el marco de un procedimiento secundario de insolvencia. El tribunal remitente quiere saber qué órgano jurisdiccional es competente para determinar los bienes sujetos al procedimiento secundario –si el juez del procedimiento principal o el del secundario– y qué ley debe aplicar el tribunal competente para establecer cuáles son esos bienes –si la ley del procedimiento principal o la ley del procedimiento secundario–.Palabras clave: insolvencia, procedimiento secundario de insolvencia, bienes del deudor.Abstract: In that judgment, the Court answers a question referred by a French court in the context of secondary insolvency proceedings. The referring court wishes to know which court is competent to determine the assets subject to the secondary proceedings – if the judge in the main proceedings or the secondary court – and which law should be applied by the competent court to establish what those assets are – if the law of main procedure or the law of the secondary procedure.Keywords: insolvency, secondary insolvency proceedings, debtor’s assets.
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Sproge, Daiga. "The Debtor’s Property Selling in the Cross-Border Insolvency Proceedings." Economics and Culture 13, no. 1 (June 1, 2016): 76–87. http://dx.doi.org/10.1515/jec-2016-0010.
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Abstract The title of this research is “The debtor’s property selling in the cross-border insolvency proceedings”. The insolvency proceeding gets the cross-border status also in case, if a debtor is an owner of the property outside of the main interests’ centre, namely, in another country. Therefore, there are many problematic cases when insolvency administrator (also called insolvency practitioner) defines the real estate in this other country and has to make a decision concerning the methods of selling the real estate in accordance with the law of the Member State in which territory the insolvency proceedings have been started. At the same time, the administrator shall provide that the property is sold in particular with regard to procedures for the realization of assets defined in the legislation of that country, where such real estate has been located. The article’s aim is to give a view of the features of the sale of the property in the insolvency proceedings and to define the possible lack and improvements in the cross-border insolvency concerning the selling of a debtor’s property. The European Parliament and the Council of the European Union has adopted Regulation (EU) 2015/848 of 20 May 2015 on Insolvency proceedings, which shall apply from 26 June 2017, with some exceptions Despite the regulation of the cross-border insolvency has been improved, the procedure of the property disposal is still incomplete in the cross-border insolvency proceedings. Within the study the following research methods are applied: the analytical method, comparative method, sociological method and descriptive method. The predicted value of the research is theoretical and also practical. The research should be useful for the insolvency proceedings administrators, the companies and the banks, other experts involved in the cross-border insolvency proceedings, as well as for students to improve their theoretical knowledge about the cross-border insolvency.
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Ruiz Martín, Anna María. "On the applicable law to detrimental acts, third party payments and “assignment” of claims in cross border insolvency proceedings." CUADERNOS DE DERECHO TRANSNACIONAL 14, no. 1 (March 7, 2022): 893–903. http://dx.doi.org/10.20318/cdt.2022.6725.
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In this preliminary ruling (C-73/20), the Court of Justice of the European Union (CJEU) faces again (as did in former case law), the issue of what law is applicable to detrimental acts within the course of a cross border insolvency proceeding. On this occasion, the CJEU analyses how and when, –according to the EU Private International Law (EU PIL) at hand for those proceedings, i.e.: the lex spe-cialis (articles 4 and 13 Insolvency Regulation) and the lex generalis (article 12 para 1 lit a Rome I Re-gulation)–, which one is of application to determine the law applicable to acts which can be considered as “detrimental” to all the creditors. With other words, whether it would be applicable to the detrimental act, the lex concursus which governs the insolvency proceedings as a whole or the lex contractus which governs the law to the contract which led in these detrimental acts. However, the particularity of this case which is highly significant is grounded in the different relationships of the parties as a consequence of an “alleged” assignment between the insolvent company, the original debtor and an outsider creditor to this cross-border insolvency proceeding. Something that the CJEU did not pore it over as expected.
9
Ho, Look Chan. "Anti-Suit Injunctions in Cross-Border Insolvency: A Restatement." International and Comparative Law Quarterly 52, no. 3 (July 2003): 697–736. http://dx.doi.org/10.1093/iclq/52.3.697.
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In its simplest form, a transnational insolvency involves an insolvency1 proceeding in one country, with creditors located in at least one additional country.2 In the most complex case, it involves multiple proceedings, subsidiaries, affiliated entities, assets, operations, and creditors in dozens of nations. Complex international insolvencies continue to proliferate alongside a burgeoning world-wide free market economy that entails the globalisation of commercial and financial markets.3
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Rudenko, L. D., and M. D. Zhitelny. "Grounds for initiating proceedings in the case of insolvency of an individual." Legal horizons, no. 24 (2020): 47–52. http://dx.doi.org/10.21272/legalhorizons.2020.i24.p46.
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The article specifies the grounds for initiating proceedings in the case of insolvency of an individual on the basis of a comprehensive comparative analysis of foreign experience, scientific literature, national legislation and practice of its application. Based on the analysis of the legislation and case law, it is noted that the Bankruptcy Code does not clearly define the term "threat of insolvency". Article 115 of the Code states that the threat of insolvency includes circumstances that confirm that in the near future the debtor will not be able to meet its monetary obligations or make normal current payments. It is argued that the lack of definition of "threat of insolvency" in the Code is a shortcoming of current legislation, and therefore this rule needs to be clarified in terms of confirming the inability of the debtor to meet financial obligations, the terms of default. It is proposed to define "threat of insolvency" as a set of documented legal grounds that indicate the inability of the debtor to meet its own financial obligations or make regular financial payments over the next two months. The expediency of determining in Article 115 of the Bankruptcy Procedure Code an exclusive list of grounds for initiating insolvency proceedings against an individual is argued. Consolidation in Art. 115 of the Code of the inexhaustible list complicates law enforcement as provides a possibility of application of norms of other regulatory legal acts; provides wide discretion to the court, which creates conditions for the abuse of procedural rights for both participants in the bankruptcy proceedings and judges. The peculiarities of initiating proceedings to restore the solvency of an individual are specified: only the debtor himself may apply to the court to declare an individual insolvent. In order to reduce the financial burden on an insolvent individual in the implementation of bankruptcy proceedings, it is proposed to give the creditor the right to initiate legal proceedings for the insolvency of such a person.
11
Wessels, Bob. "Europe Deserves a New Approach to Insolvency Proceedings." European Company Law 4, Issue 6 (December 1, 2007): 253–59. http://dx.doi.org/10.54648/eucl2007061.
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Kronis, Ivars. "CRIMINAL LIABILITY FOR DELAYING INSOLVENCY PROCEEDINGS." Administrative and Criminal Justice 1, no. 78 (March 31, 2017): 4. http://dx.doi.org/10.17770/acj.v1i78.2800.
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The article analyzes the legal norm, which provides for the criminal liability of the administrator and the representative of the debtor within the framework of legal entity insolvency proceedings or of the insolvent natural person in these proceedings. Up to now the criminal law science of Latvia discussed the issue of criminal aspects of delaying insolvency proceedings, however the authors, who researched them, did not go into details or analyzed them in conjunction with the previous insolvency regulation. This is indicative of the topicality of the theme, the importance of theoretical and practical research in the modern criminal law. By means of his thesis, the author wants to even partially close this gap, examining the most important aspects of the theme. Although the time passed after the effective date of the new Insolvency Law of November 1, 2010 is not enough to form legal practice in the criminal aspects related to delaying insolvency proceedings, it is the right moment to emphasize the urgency of the problem and to thoroughly evaluate the most important issues. Therefore, the purpose of the thesis is, analyzing peculiarities of offence as specified in Article 215 of the Criminal Law, to evaluate theoretical and practical aspects of its application. The empirical base of the research is formed by scientific theses and collections of articles, periodical editions and primary sources, legal acts, statistical data, Internet resources, other information in the public domain. To develop the thesis, the author used analytical, comparative, inductive and deductive methods of research.
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Eglite, Inga. "INSOLVENCY PROCESS PECULIARITIES OF PHYSICAL PERSONS AS A KIND OF RESUMES HOW TO UPGRADE PAYMENT AND RESTRUCTURING OUTSIDE DEBT." Administrative and Criminal Justice 3, no. 84 (February 6, 2019): 62. http://dx.doi.org/10.17770/acj.v3i84.3607.
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Existing problems in process of insolvency proceedings of a natural person, which are not exactly defined in law regulation, make specification for each insolvency process. Which often make wrong notions about process of the natural person insolvency proceeding. And what should be taken into account, for renewing the natural person solvency in the way that the natural person obligations must be extinguishing.
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Kotlán, Pavel. "Relationship of Criminal Proceedings to Civil Litigation, Insolvency and Tax Proceedings." DANUBE 11, no. 2 (June 1, 2020): 141–55. http://dx.doi.org/10.2478/danb-2020-0008.
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Abstract The main goal of this article is to clarify the nature of criminal proceedings and its relationship to civil litigation, insolvency and tax proceedings. The understanding of the purpose of the proceedings, the nature of the liability fulfilled in the proceedings and the principles on which the proceeding is based can facilitate the investigation of economic crime by the prosecuting authorities. The results of the work lead to the conclusion that key factors are the purposes of each proceedings and differences in the principles by which they are governed. But legal norms are not always unambiguous – for instance, in the issue of the so-called punitive damages, the relationship between collateral proceedings and insolvency proceedings or the nature of penalties under Art. 251 of the Tax Code.
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Draguiev, Deyan. "The Effect of Insolvency on Pending International Arbitration: What Is and What Should Not Be." Journal of International Arbitration 32, Issue 5 (October 1, 2015): 511–42. http://dx.doi.org/10.54648/joia2015024.
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Situations in which the respondent in international arbitral proceedings is declared insolvent in its jurisdiction of incorporation while the arbitration is still pending are not uncommon. They raise a number of choice of law issues both in terms of substantive and procedural law. While the roots of arbitration lie in party autonomy, insolvency laws are often comprised of mandatory rules protecting the interests of different classes of stakeholders. This article attempts to devise an abstract model of the various choice of law and characterzation problems regarding the cross-border effect of the insolvency and provide reasoned options and solutions for the arbitral tribunal faced with the interaction between insolvency and pending arbitration proceedings. It is suggested that it is part of the arbitrators’ duty to render an enforceable award to consider cautiously the effects of insolvency, especially if there is a risk of a clash with the mandatory framework of insolvency either at the seat of the arbitration or the likely place of enforcement of the award. The arguments are tested against recent case law of various national courts having reviewed the conflicts between arbitration and insolvency.
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Shubhan, M. Hadi. "Legal Protection of Solvent Companies from Bankruptcy Abuse in Indonesian Legal System." Academic Journal of Interdisciplinary Studies 9, no. 2 (March 10, 2020): 142. http://dx.doi.org/10.36941/ajis-2020-0031.
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In bankruptcy legal system in Indonesia, the court can issue bankruptcy verdict without assess a company’s solvency condition, whether the company is solvent or insolvent. The provision of this law is very prone to be misused by creditors with bad faith. Insolvency test is able to protect debtors and to prevent the abuse of bankruptcy by malice creditors. This paper aims to analyze the legal protection of solvent companies from bankruptcy abuse in Indonesian legal system. By using normative and juridical approach, the results showed that the insolvency test can be included in the future amendment of Indonesian bankruptcy law. The implementation of insolvency test therefore is not administered outside the bankruptcy proceedings, but still in the respective bankruptcy proceedings. Insolvency test can be implemented by judges based on convincing evidences such as money report made by registered Public Accountant Office. A debtor, with bad faith, should not be eligible to get protection to avoid himself from bankruptcy with the insolvency test, although the debtor has good solvability.
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Schönfeld, Jaroslav. "FINANCIAL SITUATION OF PRE-PACKED INSOLVENCIES." Journal of Business Economics and Management 21, no. 4 (June 11, 2020): 1111–27. http://dx.doi.org/10.3846/jbem.2020.12820.
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This paper is focused on the financial situation of companies entering insolvency proceedings. It does not work with all kinds of the insolvent companies, but this paper concentrates on one specific issue. The issue is pre-pack insolvencies. The main aim is to show if the financial situation is an important factor for consent to pre-pack. The pre-pack insolvencies are insolvency cases which start with an insolvency proposal which is accompanied by a reorganization plan already approved by creditors. Prepacks should help make the insolvency process quicker and enable enterprise financial rehabilitation and sustain the going concern principle. On the other hand, the procedure can hardly be successful when the financial situation of the company is extremely poor. Therefore this paper evaluates the financial situation of the companies with pre-packed insolvency in the Czech Republic. The analysis of companies was conducted over one, two or three year periods prior to the companies entering an insolvency proceeding. According to the literature, financial indicators used for evaluation are commonly EBITDA, cash liquidity, debt ratio, ROA and the Altman Z-Score prediction model. Results for the individual enterprises are summed up in this paper using basic descriptive and variable statistics. Conclusions have especially practical implications because they show financial inability of majority pre-packed cases.
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Baliura, Anna. "Peculiarities of court proceedings in insolvency cases under the laws of the Federal Republic of Germany." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 407–11. http://dx.doi.org/10.36695/2219-5521.1.2020.80.
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The present article represents the results of the analysis of the German model of court proceedings in insolvency cases. In particular, within the framework of our research we have analysed specific aspects of the use of terminological apparatus, inter alia, we have traced the differences of the use of terms ‘insolvency’ and ‘bankruptcy’ under the laws of Germany. Besides, the article covers jurisdiction rules in insolvency cases and provides key characteristics of enforcement proceedings in respective cases. The present article contains in-depth analysis of criteria for recognition the debtor’s insolvency, namely, inability to pay, threatening inability to pay and over-indebtedness. During our research we have also identified and analysed legislative grounds for rejection of the debtor’s or creditors’ application initiating insolvency proceedings.
Further, the article clearly indicates the functions and powers of the court, as well as the rights and obligations of the parties at each stage of court proceedings in insolvency cases, notably, imposition by the court of security measures, namely, appointment of insolvency practitioner and restriction of the right to dispose of the debtor’s property, adoption or rejection by the court of insolvency recovery plan submitted by the debtor or appointed insolvency practitioner. This article also highlights time frames for realization of the above-mentioned rights and obligations and for the entire insolvency proceedings itself.
The article reflects evolution of German court’s approach to foreign proceedings in insolvency cases, as well as to decisions of foreign courts in case of this category from total non-recognition to recognition and incorporation of respective rules into the legislation of Germany on cross-border insolvency. The evolution in question is sustained by glaring court practice in this regard.
The present article provides quantitative conclusions on peculiarities of the entire insolvency system of Germany and, particularly, of German model of court proceedings in insolvency cases.
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Madaus, Stephan. "The (Underdeveloped) Use of Arbitration in International Insolvency Proceedings." Journal of International Arbitration 37, Issue 4 (July 1, 2020): 449–78. http://dx.doi.org/10.54648/joia2020021.
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The commencement of insolvency proceedings has mostly been perceived as a form of disturbance in the arbitration world because it could provide a cause to stay pending arbitration proceedings and hinder the enforcement of arbitral clauses and arbitral awards. Most of the academic discussion has focused on these issues. This article will discuss these issues only briefly. Instead, it aims at demonstrating that disputes which arise in the context of international insolvency proceedings could benefit from a more advanced use of arbitration. The article explains the arbitrability of disputes in insolvency proceedings and the limited scope of the public policy defense with the national insolvency laws functioning as a gatekeeper to arbitration. Consistent with existing insolvency case law in many jurisdictions, an arbitration-friendly approach is formulated. Following this approach, the article outlines disputes that could be resolved efficiently when addressed in arbitration. Insolvency, arbitration, arbitrability, bankruptcy, core bankruptcy issue, public policy, cross-border insolvency proceedings, related disputes
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Gaboardi, Marcello. "The Role of Consent in European Cross-Border Insolvency Proceedings: The Unilateral Undertaking under Article 36 EIRR." Global Jurist 21, no. 2 (March 16, 2021): 417–46. http://dx.doi.org/10.1515/gj-2020-0002.
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Abstract Properly balancing between public and private interests is one of the most significant and complex challenges presented by modern insolvency law. The European Union insolvency law has recently embraced that challenge, by reinforcing the role that private actors, such as creditors and stakeholders, are called upon to play within the context of insolvency proceedings. That approach to insolvency has gradually reduced the impact of public actors, such as judges and public officers, in managing the debtor’s financial difficulties. The individual consent seems to be the new way of facing the debtor’s insolvency. First, this Article examines the role of individual consent in insolvency proceedings in terms of economic efficiency. It focuses on the tendency to favor agreements between the debtor and creditors or the insolvency practitioner in several European legal systems when they increase the likelihood to produce efficient results for both the parties. The second part of this Article focuses on the European Regulation on cross-border insolvency proceedings no. 848/2015. I offer some critical thoughts about the unilateral undertaking under article 36 of the European Regulation. It represents a relevant means of managing the debtor’s cross-border insolvency through an agreement between the insolvency practitioner in the main insolvency proceedings and local creditors in order to avoid the opening of inefficient secondary proceedings.
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Pervan, Ivica, Marijana Bartulović, and Šime Jozipović. "Are insolvency proceedings opened too late? The case of Germany, Croatia and Slovakia." Ekonomski vjesnik 36, no. 2 (2023): 387–98. http://dx.doi.org/10.51680/ev.36.2.13.
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Purpose: The aim was to analyze insolvency proceedings in Germany, Croatia and Slovakia and answer the research question whether insolvency proceedings are opened too late in the observed countries and how this issue can be explained. Methodology: Comparative analysis of insolvency systems in Germany, Croatia, and Slovakia was con-ducted. Furthermore, the financial profile (liquidity) of firms in pre-insolvency and insolvency proceedings in Germany, Slovakia and Croatia was analyzed and respective results were compared with data on government effectiveness and the rule of law in the observed countries. The one-way ANOVA was performed to test the differences in liquidity among companies that initiated pre-insolvency and insolvency proceedings.Results: The results indicate that German companies respond to signs of crises earlier in comparison to Croatian and Slovakian companies and these differences cannot be explained only by criminal law measures which are not equally effective across jurisdictions, but they depend to a large extent on government effectiveness and the rule of law in a country.Conclusion: The results show that despite the similarities in the civil law frameworks, insolvency proceedings in Croatia and Slovakia are still initiated on average much later than in Germany. Moreover, according to the results, criminal law sanctions against the late initiation of insolvency proceedings can have preventive effects. However, while they can increase the number of timely insolvency proceedings, their effective-ness is still limited by the efficiency of the judicial system measured by the strength of institutions and their consistent application.
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Tamošiūnienė, Egidija, Vigintas Višinskis, Mykolas Kirkutis, and Remigijus Jokubauskas. "Problems of Ensuring the Effective Commencement of Insolvency Proceedings." Teisė 117 (December 28, 2020): 47–63. http://dx.doi.org/10.15388/teise.2020.117.3.
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This article examines the problems of the application of the Law on Insolvency of Enterprises of the Republic of Lithuania as related to the commencement of insolvency proceedings. The new insolvency law introduces a new procedure for the commencement of insolvency proceedings that applies to restructuring and bankruptcy proceedings. In the authors’ opinion, the application of this procedure can raise both theoretical and practical problems that have not been analysed yet.
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Tamošiūnienė, Egidija, Vigintas Višinskis, Mykolas Kirkutis, and Remigijus Jokubauskas. "Problems of Ensuring the Effective Commencement of Insolvency Proceedings." Teisė 117 (December 28, 2020): 47–63. http://dx.doi.org/10.15388/teise.2020.117.3.
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This article examines the problems of the application of the Law on Insolvency of Enterprises of the Republic of Lithuania as related to the commencement of insolvency proceedings. The new insolvency law introduces a new procedure for the commencement of insolvency proceedings that applies to restructuring and bankruptcy proceedings. In the authors’ opinion, the application of this procedure can raise both theoretical and practical problems that have not been analysed yet.
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Poliakov, Rodion. "Analysis of the model of regulation of cross-border insolvency under German law." Visegrad Journal on Human Rights, no. 2 (December 29, 2023): 89–98. http://dx.doi.org/10.61345/1339-7915.2023.2.12.
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The article is devoted to the analysis of the model of regulation of cross-border insolvency under German law. The purpose of the article is the scientific understanding and identification of the characteristic features of the model of regulation of cross-border insolvency under German law.
The presence of dualism in the legal regulation of the cross-border insolvency procedure under German law for EU member states and non-EU member states has been ascertained.
It is argued that there are five types of proceedings in the cross-border insolvency procedure under the provisions of the German insolvency Statute 1) main proceedings; 2) secondary proceedings; 3) domestic secondary proceedings; 4) foreign proceedings; 5) territorial proceedings), as well as the absence of a legally established definition of these concepts.
The absence of the concept of the debtor’s COMI was found in the provisions of the German insolvency Statute, even despite the fact that such a concept exists in the regulatory act itself, such concept does not fall under the classical understanding of cross-border insolvency, because it concerns the insolvency of a group of companies. The similarity of the provisions of the German insolvency Statute regarding the regulation of cross-border insolvency with the provisions of the predecessor acts of the 19th century regarding the same issue, as well as the exploitation of even similar terminology in relation to territorial proceedings, is proven. The almost complete impossibility of universalism in accordance to the provisions of the German insolvency Statute on cross-border insolvency has been proven, despite the presence, at first glance, of an environment favorable to the implementation of the mentioned theory.
It is substantiated that the modern procedure of cross-border insolvency in Germany for third countries that are not members of the EU embodies the theory of territorialism. It has been proven that the existing territorial ideology of cross-border insolvency in modern Germany can be traced back to the existence of the Konkursordnung of 1877.
By virtue of improving the legislation of Ukraine on bankruptcy, it is proposed to add a new Book to the Bankruptcy Code of Ukraine, which would contain the regulation of the cross-border insolvency procedure.
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Savickis, Valdis. "Maksātnespējas process Covid-19 pandēmijas ēnā." SOCRATES. Rīgas Stradiņa universitātes Juridiskās fakultātes elektroniskais juridisko zinātnisko rakstu žurnāls / SOCRATES. Rīga Stradiņš University Faculty of Law Electronic Scientific Journal of Law 3, no. 21 (2021): 70–81. http://dx.doi.org/10.25143/socr.21.2021.3.070-081.
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The author has set two main objectives researching the topic concerning the influence of the COVID-19 pandemic to the insolvency proceedings; the first one being identification how the scope of prohibitions and restrictions impact insolvency proceedings (in particular – legal entities), while the second concerns determining legal and financial instruments that have been implemented on national level, influencing solvency and insolvency proceedings policy during the emergency period. Using analytical and descriptive methods, normative acts and political planning documents have been studied. The historical method provides insight into evolution and development of regulatory frameworks. The comparative method has been applied by comparing the scope of legal and financial instruments on national level in the sphere of management and suppression of consequences of the spread of COVID-19 infection. Conducting the research, the author has aimed to establish specifics of crisis management legislation on both executive and parliamentary powers levels, and relationships with the specific legal framework in the field of insolvency proceedings. State, declaring the emergency state, invented scope of prohibitions and restrictions on the one hand, and promoted targeted financial and legal assistance on the other. The extent of bargaining was balanced with support mechanisms also in the sphere of insolvency of legal entities, highlighting clear and predictable insolvency policy. Targeted restrictions on prohibitions for creditors for submission of an application for insolvency proceedings of a legal person were synchronised with both periods of declaration of the emergency state. A more precise and extended regulation concerning submission of an application for insolvency proceedings of a legal person were invented after the second period of emergency state lasting until 1 March 2021. Scope of legal and financial instruments, invented on both pandemic periods (Year 2020 Fall and Autumn), in majority of cases were of the same nature, but with a different perspective of implementation and availability. In this particular segment of support mechanisms are evolutionary, inventing more flexible and accessible instruments of pandemic recovery funds. Keywords: insolvency, COVID-19, state of emergency, prohibition, legal entities.
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SHISHMAREVA, T. P. "ESTABLISHMENT OF CREDITORS’ REQUIREMENTS IN INSURANCE PROCEDURES IN RUSSIA AND GERMANY." Herald of Civil Procedure 11, no. 6 (February 14, 2022): 179–95. http://dx.doi.org/10.24031/2226-0781-2021-11-6-179-195.
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The article examines the legal nature of the court procedure for establishing creditors’ claims in insolvency proceedings. A conclusion is drawn about the judicial nature of the procedure for establishing disputed claims and about the possibility of resolving disputes with creditors outside of insolvency proceedings. The article analyzes the legal status of creditors whose claims are subject to establishment in a special procedure. The terms of filing claims by bankruptcy creditors and authorized bodies for their establishment as participants in the insolvency procedure and the legal consequences of failure to comply with the established terms have been investigated. The article compares the insolvency laws of Russia and Germany on establishing creditors’ claims, reveals the differences in German legislation on establishing controversial creditors’ claims in a separate legal proceeding. A specific feature of German legislation on checking undisputed claims with the active participation of creditors, whose claims are satisfied from the bankruptcy estate, at a meeting of creditors specially convened for this purpose, has been established. The article analyzes the ways of protecting the rights of creditors in case of abuse by the debtor and the creditors affiliated with him of their rights when establishing the claims of creditors. Particular attention is paid to the use of a knowingly unjust decision and measures to revise it in the course of insolvency proceedings.
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Bork, Reinhard. "Debt Restructuring in Germany." European Company and Financial Law Review 15, no. 3 (November 9, 2018): 503–15. http://dx.doi.org/10.1515/ecfr-2018-0016.
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For a long time, German restructuring and insolvency law had no pre-insolvency restructuring scheme binding on dissenting creditors. Only in opened insolvency proceedings a restructuring plan could be used for debt restructuring. Now the German legislators has taken means to improve German law in three ways: first, by updating the German Bond Act (also known as the German Debenture Act), especially through permitting the change of the bond conditions by a majority vote of the creditors if the conditions allow for such majority vote; second, by improving German insolvency law through the “Act for the Further Simplification of Company Restructuring (ESUG)” which enables the debtor to start early restructuring preparation proceedings (“protective umbrella proceedings”); and, third, by announcing the introduction of new pre-insolvency restructuring proceedings as a reaction to the EU Directive proposed by the European Commission on 22 November 2016.
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Krásnická, Martina, Viktor Vojtko, Zdeněk Strnad, and Rudolf Hrubý. "Simulation of Insolvency Proceedings Year II – Evidence of the Long Term Effect on Cognitive Learning." Acta Universitatis Agriculturae et Silviculturae Mendelianae Brunensis 65, no. 6 (2017): 1979–85. http://dx.doi.org/10.11118/actaun201765061979.
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The aim of this paper is to draw some conclusions from a long‑term project inspired by the so‑called Mock trials experienced in the USA and applied into the Czech system of law education of students at the Faculty of Economics of the University of South Bohemia. The project involves a simulation of insolvency proceedings in case of a company bankruptcy. The students play roles of the various participants in the insolvency proceedings and learn very relevant but rather complicated process of insolvency. The results of the second academic year involve re‑testing of students included in the SIP 1.0 (Simulation of Insolvency Proceedings 2015/2016) in order to assess if the learning experience has the long‑term impact and comparison with the new group of students that undergone the SIP 2.0 (Simulation of Insolvency Proceedings 2016/2017).
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Tamošiūnienė, Egidija, Vigintas Višinskis, Mykolas Kirkutis, and Remigijus Jokubauskas. "Assurance of the Effectiveness of Corporate Insolvency Proceedings." Teisė 116 (October 6, 2020): 24–35. http://dx.doi.org/10.15388/teise.2020.116.2.
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This article examines some practical problems of the application of the Law on the Insolvency of Enterprises of the Republic of Lithuania related to the effectiveness of insolvency proceedings. Though the new insolvency law seeks to ensure effective insolvency process, the analysis of certain provisions reveals certain problems of this act, which could significantly impact the effectiveness of this process.
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Madaus, Stephan, and F. Javier Arias. "Emergency COVID-19 Legislation in the Area of Insolvency and Restructuring Law." European Company and Financial Law Review 17, no. 3-4 (September 14, 2020): 318–52. http://dx.doi.org/10.1515/ecfr-2020-0018.
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The appearance of the COVID-19 in Europe has prompted lawmakers to introduce public health measures that inevitably hurt the economy by reducing economic activity and business revenues. The foreseeable risk that the pandemic could be followed immediately by a bankruptcy epidemic led to the adoption of rules related to insolvency and restructuring laws in emergency legislation in most European countries. These rules aim at avoiding businesses to become insolvent either by suspending insolvency tests (see II.) or by providing cash support and debt moratoria (see III.). They may also contain measures that indirectly affect insolvency and restructuring proceedings (see IV.). This paper explains the logic behind emergency legislation and the specific rules adopted in European countries.
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Suri, Noémi. "Insolvent Groups of Companies in the European Union." Bratislava Law Review 4, no. 2 (December 31, 2020): 189–98. http://dx.doi.org/10.46282/blr.2020.4.2.179.
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Before 26 June 2017, there was no single universal regulation governing the treatment of insolvency cases concerning groups of companies or certain members of a group in the European Union. The Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings defines the effective execution of insolvency proceedings at the different group members involved as the general objective of the legal source. The aim of my paper is to review the detailed rules of group coordination proceedings, during which I focus on the request for opening group coordination proceedings, on the possibility of defining which court has jurisdiction, on the review of the opt-out and opt-in rights related to group coordination proceedings and on the presentation of the powers assigned to the coordinator.Before 26 June 2017, there was no single universal regulation governing the treatment of insolvency cases concerning groups of companies or certain members of a group in the European Union. The Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings defines the effective execution of insolvency proceedings at the different group members involved as the general objective of the legal source. The aim of my paper is to review the detailed rules of group coordination proceedings, during which I focus on the request for opening group coordination proceedings, on the possibility of defining which court has jurisdiction, on the review of the opt-out and opt-in rights related to group coordination proceedings and on the presentation of the powers assigned to the coordinator.
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Mantilla-Serrano, F. "International Arbitration and Insolvency Proceedings." Arbitration International 11, no. 1 (March 1, 1995): 51–74. http://dx.doi.org/10.1093/arbitration/11.1.51.
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Lund, Anna. "Cooperative Difference in Insolvency Proceedings." McGill Law Journal 68, no. 2 (April 1, 2023): 161–201. http://dx.doi.org/10.26443/law.v68i2.1292.
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Mountain Equipment Co-operative used insolvency proceedings under the Companies’ Creditors Arrangement Act to sell its business to a private equity firm. A group of members unsuccessfully challenged the sale in court, raising arguments about the court’s power to approve the sale, the fiduciary obligations of the cooperative’s directors and the oppression remedy. This article suggests that the court would have been justified in granting a remedy to the dissenting members if it had attended to how cooperatives differ from standard corporations. This article highlights salient differences between cooperatives and corporations and then analyzes how these differences were relevant to the court’s analysis of its power to approve the sale, the director’s fiduciary obligations, and the oppression remedy. The sale of Mountain Equipment Co-operative underlines the importance of paying careful attention to a debtor’s legal form in insolvency when the debtor is not a standard corporation.
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Abeln, Tom G., and Rufus F. Abeln. "The Future of the European Insolvency Regulation." European Review of Private Law 19, Issue 5 (October 1, 2011): 697–706. http://dx.doi.org/10.54648/erpl2011051.
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On 28 April 2011, the future of the European Insolvency Regulation was discussed during a one-day international conference in Amsterdam. Since its entry into force in 2002, the European Insolvency Regulation has proven to be a successful piece of European legislation. At the current time, the review and possible reform of the Regulation is on the agenda of the European Commission. This should lead to a legislative proposal in 2013. The conference provided for a gathering of ideas on the functioning of the EIR, on possible amendments to it, and on the issues encountered in practice. It was strongly supported that the COMI of the debtor should be maintained as the factor determining jurisdiction to open main insolvency proceedings. It was regarded desirable to introduce different COMI definitions for natural persons and legal persons respectively. Secondary proceedings should be possible next to main proceedings, but they should no longer be limited to liquidation proceedings. With regard to dealing with insolvencies of corporate groups, it was acknowledged that coordination of the insolvency proceedings of group companies is desirable. On the topic of applicable law and security rights, the discussion showed that Article 5 EIR required clarification on certain issues. Opinions differed on the question whether the protection currently offered to secured creditors is excessive or whether it should be maintained. Furthermore, it was widely supported that the Regulation should provide for explicit obligations for both courts and liquidators in main and secondary proceedings to cooperate in cross-border insolvency cases. Finally, suggestions were made to either widen the scope of the EIR or draft separate regulations for pre-insolvency proceedings. The discussions showed that a reform of the EIR is indeed deemed necessary in order for the Regulation to continue to be a successful instrument in the international insolvency practice.
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Serebryakova, Y. O. "Insolvency as a material and legal basis for initiating bankruptcy proceedings against business organizations." Legal horizons, no. 26 (2021): 47–51. http://dx.doi.org/10.21272/legalhorizons.2021.i26.p47.
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In this scientific article, the author discloses the definition of insolvency as a substantive legal basis for opening bankruptcy proceedings. It is emphasized that the grounds for initiating bankruptcy proceedings enshrined in the Bankruptcy Procedure Code are not consistent with the concept of insolvency of the debtor, which is enshrined in part one of Article 1 of this Code, as their combined application does not require establishing the debtor's ability to meet its monetary obligations. to creditors after the due date solely through the application of bankruptcy proceedings. It is established that the courts do not establish the facts of the debtor's signs of insolvency, taking into account the concept of insolvency, which is enshrined in law. It is alleged that the postponement of the moment of proving insolvency to the stage of disposition of the debtor's property is the cause of cases of unreasonable application to the debtor of the consequences of bankruptcy proceedings, namely, a moratorium on creditors' claims, restriction of the debtor to decide on his property. It is emphasized that the existing legal position of the Supreme Court on the moment of establishing the solvency of the debtor is unconstructive, as it allows the opening of bankruptcy proceedings against debtors who have no signs of insolvency, but simply perform their obligations in bad faith. It is noted that insolvency is an economic category, requires knowledge of the balance sheet of the enterprise, the economic component of its assets and liabilities, and so on. In order to establish the facts of bankruptcy, fictitious bankruptcy or hidden bankruptcy, it is proposed to conduct a mandatory economic examination of the debtor before initiating bankruptcy proceedings.
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Lennarts, Loes. "EU Corporate Insolvency Law in the Wake of the ECJ’s Deko Marty Judgment." European Company Law 7, Issue 3 (June 1, 2010): 106–12. http://dx.doi.org/10.54648/eucl2010021.
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In February 2009, the ECJ rendered the Deko Marty judgment in which it decided that courts of Member States having jurisdiction to open insolvency proceedings on the basis of the EU Insolvency Regulation also have jurisdiction to hear actions which derive directly from insolvency proceedings and are closely linked to them. The author discusses this judgment in the light of the recent trend of insolvencification: the policy to re-label company law provisions that aim to protect creditors by transforming these provisions into provisions of insolvency law.
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Konopecka, Renata. "AN AMICABLE AGREEMENT OR ANOTHER FORM OF DEBT RESTRUCTURING IN INSOLVENCY PROCEDURE FOR INDIVIDUALS IN LATVIA." CBU International Conference Proceedings 4 (September 19, 2016): 509–14. http://dx.doi.org/10.12955/cbup.v4.805.
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The goal of this article is to explore the features of using insolvency proceedings in Latvia and to elaborate on special proposals for modernizing the laws. In the legislation, there has been no prospect from a legal perspective to restructure an individual’s debts. Namely, individuals have no opportunity to use legal protection within the framework of the insolvency proceedings to reach an amicable agreement with creditors, or create another form of debt restructuring. Eliminating this gap in legislation is therefore necessary.In this article, analytical, comparative, historical and deductive methods are used to explore the legal norms that regulate the insolvency proceedings for an individual. The aim is to identify the distinctive features of the proceedings; to analyze the problematic aspects of laws and develop proposals for modernizing the legislation of Latvia in this field. The novelty of this research pertains to it being the first attempt in Latvia to examine the question of legal regulation of insolvency proceedings in complexity, with a practical proposal to improve Latvian legal norms and avoid bankruptcy problems. The outcome of this study includes a proposal to supplement the Act on Insolvency with the Article “Amicable Agreement”, for deciding upon the state of insolvency. This relates to an agreement between the creditors and the debtor to fulfil obligations before an auction of the debtor’s property.
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Smolík, Josef, and Alena Kajanová. "Scheming to defraud in an insolvency proceeding: a specific case of economic criminal acts." Studia Commercialia Bratislavensia 11, no. 39 (June 1, 2018): 107–17. http://dx.doi.org/10.2478/stcb-2018-0008.
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Abstract The article presents the theoretical foundations of the criminal act of scheming to defraud in an insolvency proceeding. A criminal act according to the § 226 Act No. 40/2009 Coll. (Criminal Code) is often a part of organized crime. Crime is made easier by the difficult proceedings of solving the debtor’s bankruptcy in the Czech Republic. The article includes a case interpretation in which the judge committed a crime. She caused severe harm to several participants of the insolvency proceeding and secured that the debtor’s shareholder benefited.
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Singh LLM, Shraddha. "Insolvency and Intellectual Property Rights Protection and Enforcement Issues in Bankruptcy Proceedings." International Scientific Journal of Engineering and Management 03, no. 03 (March 23, 2024): 1–9. http://dx.doi.org/10.55041/isjem01450.
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This research paper explores the intricate relationship between intellectual property (“IP”) rights and insolvency proceedings, particularly within the framework of the Insolvency and Bankruptcy Code (“IBC”) in India. Intellectual property assets, including trademarks, patents, copyrights, and other intangible assets, hold significant value for companies, often becoming pivotal factors in insolvency resolution outcomes. Despite the critical role of IP, the IBC lacks explicit provisions addressing the treatment of IP licenses during insolvency, leading to uncertainties and gaps in legal guidance. Through a comprehensive examination of relevant sections of the IBC, such as Section 18 and Section 29, alongside comparative analysis with international insolvency laws, this paper elucidates the complexities surrounding the treatment of IP licenses in insolvency scenarios. It delves into concepts like the disclaimer of onerous property, avoidance powers, and the role of resolution professionals in managing IP assets during insolvency resolution processes. Furthermore, this paper identifies the absence of clear guidelines for cross-border insolvency cases involving intellectual property licenses, highlighting the need for harmonization and regulatory clarity to address potential conflicts between different insolvency regimes. The research underscores the importance of administrative inquiry and legislative action to provide robust protection for IP rights within insolvency frameworks, ensuring equitable treatment for all stakeholders involved. Keywords: Intellectual Property, Insolvency, Insolvency and Bankruptcy Code, IP Licenses, Cross-border Insolvency
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Busch, Dörte. "Current Reform Efforts of German Consumer Insolvency Law and the Discharge of Residual Debts." German Law Journal 7, no. 6 (June 1, 2006): 591–601. http://dx.doi.org/10.1017/s2071832200004879.
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The new Insolvency Statute (Insolvenzordnung – InsO), which came into force on 1 January 1999, sets a discharge of residual debts (Restschuldbefreiung), sections 286 – 303 InsO. When the debtor is a natural person, he or she can request the discharge on the basis of two different insolvency proceedings: either in accordance with the regular insolvency proceedings or in accordance with the consumer insolvency proceedings. The discharge of residual debts has both a social and an economic function. On the one hand, it serves as personal protection for the debtor, especially his rights of privacy and dignity (allgemeines Persönlichkeitsrecht); it will give debtors a new perspective. On the other hand, the provisions intend to (re)integrate debtors into economic life, thereby avoiding illegal employment.
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Stroie, Cristina, and Adriana Duţescu. "The Enterprise Risk Profile Model and Its Implementation in Reorganised Companies." Proceedings of the International Conference on Business Excellence 13, no. 1 (May 1, 2019): 241–53. http://dx.doi.org/10.2478/picbe-2019-0022.
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Abstract Globalization, as a response to the accelerated developments in recent decades, has shifted the world economy to a direction in which the adaptation to uncertainty conditions has been one of the most important manifestations of rational behavior. Human activity has always been subject to risks and uncertainty, and environmental pressure naturally generates selection and adaptation. The risk profile analysis in insolvency proceedings, as an indicator of managerial and financial health, represents a challenge to complement the gaps in the literature, given the limited studies in the field, compared to the bibliography in the field of risk management, for the companies in the economic circuit. This topic is of major importance for all business environments, having in view the disasters generated by economic crises on companies. In terms of judicial reorganization and insolvency proceedings, the situation in Romania proves to be different from the practices in the countries with tradition in this field and we are referring here to the USA, Germany and France. Comparative studies have indicated dysfunctions in the reorganization procedures in Romania, related to the lack of a coercive system to remove the insolvency debtors from the economic circuit, and the lack of models for analyzing the reorganization capacity of companies in insolvency proceedings. Regarding a possible reorganization of a company, creditors do not have approved analysis models in order to vote on reorganization plans and most of the time, at least as far as public creditors are concerned, their vote is negative and unfounded. The purpose of this research is to generate a model of internal risk analysis specific to the companies undergoing insolvency proceedings and of external risks related to the activity sector, a model able to predict the possibility of reorganizing a company undergoing insolvency proceedings. The main tool used is the interview, conducted on a sample of insolvency experts in Romania, with an average experience of approx. 10-20 years in insolvency and reorganization activities. Based on the analysis of the obtained results, we will refine and restructure a model, and then we will test it on a sample of companies undergoing insolvency proceedings.
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Wee, Meng Seng. "The Belt and Road Initiative, China’s Cross-Border Insolvency Law, and the UNCITRAL Model Law on Cross-Border Insolvency." Chinese Journal of Comparative Law 8, no. 1 (June 1, 2020): 116–42. http://dx.doi.org/10.1093/cjcl/cxaa012.
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Abstract By examining the special features of cross-border insolvency affecting the Belt and Road Initiative (BRI), this article explains that it is crucial for China to ensure that its cross-border insolvency law is fit for the purposes of the BRI. The current law is unsatisfactory, as may be seen in Hanjin Shipping’s decision not to seek recognition of its Korean restructuring proceeding in China. China wants to cooperate more in cross-border insolvency, but it is concerned that recognizing foreign insolvency proceedings will prejudice China’s interests. This article explains that the logic and limits of the United Nations Commission on International Trade Law’s Model Law on Cross-Border Insolvency is enlightened self-interest, which leads to recognition being very limited and distinguished from relief and relief being based on domestic law. Thus, it argues that the adoption of the Model Law will not prejudice China’s interests.
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Bilić, Antun, and Marko Bratković. "Pobojnost namjernog oštećenja vjerovnika stečajnog dužnika." Zbornik Pravnog fakulteta u Zagrebu 71, no. 3-4 (November 15, 2021): 443–76. http://dx.doi.org/10.3935/zpfz.71.34.05.
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It is clear from the case law of Croatian courts that intentional disadvantaging the creditors (regulated in Article 202 of the Insolvency Act) is the most commonly used ground for contesting the legal transactions of an insolvent debtor. On this ground, all legal transactions undertaken in the suspect period of as long as ten years before the submission of the application for opening (pre-)insolvency proceedings until the opening insolvency proceedings can be contested. The authorized contester, however, in litigation has a tall order of proving not only that the debtor took action with the intent to disadvantage its creditors but also that the opponent of the contestation was aware of that intent. The debtor’s intent to disadvantage its creditors and the awareness of the opponent of the contestation are both determined on the basis of objective indications that are at the heart of the analysis of this paper. Incongruent settlement, the unequal value of consideration, unusual contractual clauses, the proximity of the insolvency debtor and the opponent of the contestation, and the debtor’s (threatening) inability to pay his debts are most often recognized in case law as indications of intentional disadvantaging the creditors of an insolvent debtor. In addition to certain objections to the normative regulation of the institute itself, especially regarding the drafting of presumptions that make it easier to prove the contester’s awareness of the debtor’s intention to disadvantage its creditors, the paper presents a critical assessment of case law that could facilitate its harmonization and serve as a guide to authorized contesters as to whether it is appropriate to engage in contestation or not.
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Lepetić, Jelena. "Disputed claims and mediation in Serbian insolvency law: De lege lata and de lege ferenda." Pravo i privreda 58, no. 3 (2020): 156–76. http://dx.doi.org/10.5937/pip2003156l.
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In this paper, the author analyses the Insolvency Act's provisions on mediation. Firstly, the author points out the existence of a special legal regime for mediation of disputes related to the determination of claims, which differs from the general regime of mediation. Afterwards, the provisions on initiating mediation proceedings are analysed, with the special emphasis on the persons authorized to submit proposal for resolving a dispute in the mediation procedure according to the provisions of the Insolvency Act as well as the role of the creditors' committee in this regard. Then, the author analyses the issue of the duration and termination of mediation, pointing out the inconsistencies of the domestic solution. Furthermore, the issue of the costs of mediation proceedings in connection with insolvency proceedings is addressed shortly. In conclusion, the author advocates the abolition of restrictions on active legitimacy for submitting proposals for resolving disputes through mediation, prescribing additional competencies of the creditors' committee at the final stage of the mediation procedure in relation to the disputed claims in which the insolvency administrator participates, and providing a single regime of mediation for disputes regarding insolvency proceedings resolution.
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Lee, Yeon Ju. "New EU Regulation on Insolvency Proceedings - Focused on the International Insolvency Proceedings of Multinational Enterprises -." Korea Private International Law Journal 24, no. 1 (June 30, 2018): 349–76. http://dx.doi.org/10.38131/kpilj.2018.06.24.1.349.
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Tolpegina, О. А. "ANALYSIS OF THE NATIONAL PRACTICE BANKRUPTCY PROCEEDINGS." Strategic decisions and risk management, no. 5 (October 25, 2014): 86–96. http://dx.doi.org/10.17747/2078-8886-2013-5-86-96.
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Features of the application of bankruptcy procedures are considered in terms of accepted Russian insolvency laws since 1992, when the newly resurfaced institution of insolvency, and to date. Assessing the impact of the global financial crisis has shown that Russia's crisis was a determining factor in mass bankruptcies.
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Hrycaj, Anna, and Anna Michalska. "Wpływ postępowań likwidacyjnych wszczynanych w wybranych krajach europejskich systemu prawnego common law na bieg postępowań rozpoznawczych i egzekucyjnych toczących się w Polsce oraz wpływ wszczęcia i wyniku postępowania w wyżej wymienionych krajach na istnienie roszczenia dochodzonego przed sądem polskim." Prawo w Działaniu 33 (2018): 7–37. http://dx.doi.org/10.32041/pwd.3301.
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This paper is an analysis of effects of winding up proceedings conducted in certain European countries of the common law system. First of all, the paper presents the system of insolvency law in the EU, taking into account the sources of EU insolvency law. This is followed by a presentation of European law regulations concerning the impact of an insolvency order issued in one EU Member State on litigation and enforcement proceedings in another Member State, including the effects of such insolvency order on pending lawsuits, with special focus on enforcement and examination proceedings. Then there follows a presentation of the regulations concerning consumer bankruptcy in the UK, including the sources of law, with a specification of the particularities of the law of England, Wales, Scotland, and Northern Ireland, the procedure, the legal effects of bankruptcy orders and the legal effects of writing-off of debts. Finally, the influence of winding-up proceedings initiated in Ireland and the UK on the initiation and conduct of litigation before Polish courts and on the course of examination proceedings in Poland. On the basis of the above reflections, a conclusion is formulated that if in Ireland and the UK consumer bankruptcy proceedings are initiated, while in Poland proceedings are pending with respect to the bankruptcy estate, these proceedings should be stayed pursuant to the Polish law. These proceedings should be resumed with the participation of a trustee or, where no trustee has been appointed, with the participation of an official receiver. It is also indicated that if an insolvency or bankruptcy order is issued in the UK, then English law will apply to assessing the possibility of initiating examination proceedings before a Polish court. Under the English law, unsecured creditors have no legal remedies against the debtor until declaration of bankruptcy without the leave of the court (Section 285 of the Insolvency Act). Once they obtain consent, they have to submit their claims to the trustee. Only secured creditors, e.g. ones having a mortgage on the debtor’s property, have the right to pursue their secured clams bypassing the rules presented above.
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Iancu, Lavinia-Olivia. "Covid Influence in Insolvency in Romania." Athens Journal of Law 9, no. 4 (October 2, 2023): 583–96. http://dx.doi.org/10.30958/ajl.9-4-5.
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The Covid pandemic installed at the beginning of 2020 influenced the matter of insolvency. A series of measures were adopted to protect de debtors already insolvent on one hand, and new procedures were established on the other hand to ensure the ongoing insolvency proceedings. We can observe a special attention of the legislator in protecting legal person debtors compared to natural person debtors. Although the pandemic deeply affected citizens, they did not access the insolvency procedure of the natural person, but this procedure could represent a solution for overcoming their financial difficulties. The Romanian legislator did not intervene in the modification of the legal text, although the doctrine claimed a complicated procedure, with generally unattractive and interpretable notions. The financial difficulties faced by the business environment convinced the Romanian legislator, in 2022, to focus on insolvency prevention procedures, creating a modern framework for extrajudicial negotiations of the debts with the creditors. Although a year has passed since the end of the state of alert in Romania, and the effects of the pandemic are still visible, the method of administering insolvency procedures that offers effective solutions implemented during Covid period has been preserved. Keywords: Law; Insolvency; Legal persons; Natural persons; Covid
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Andrieieva, Anhelina. "Ensuring effective insolvency procedures of natural persons (entrepreneurs): analysis of the legal regulation of insolvency in the European Union and Ukraine." SOCRATES. Rīgas Stradiņa universitātes Juridiskās fakultātes elektroniskais juridisko zinātnisko rakstu žurnāls / SOCRATES. Rīga Stradiņš University Faculty of Law Electronic Scientific Journal of Law 3, no. 27 (December 2023): 1–8. http://dx.doi.org/10.25143/socr.27.2023.3.01-08.
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"Full discharge of debts, as an outcome of the insolvency proceeding, should enable an entrepreneur to pursue their economic activity onward. This research analyses the implementation of the European Union’s discharge of debt standards into Ukrainian legislation. The article focuses on the comparison of the discharge procedures of natural persons (entrepreneurs) between the Code of Ukraine on Bankruptcy Procedures (CUBP) No. 2597-VIII from 18 October 2018 and the Directive (EU) 2019/1023 on restructuring and insolvency from 20 June 2019. As a result, the author observes that the CUBP maintains a different approach to protecting creditors’ and debtors’ interests in the discharge procedures compared to the Directive (EU) 2019/1023 on restructuring and insolvency. In conclusion, the author proposes approximating Ukrainian legislation to European standards by amending the CUBP. Keywords: discharge of debts, EU law, insolvency proceedings of entrepreneurs, repayment plan."
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Vâlcu, Elise Nicoleta, and Lavinia Olah. "PREVENTIVE PROCEEDINGS IN THE VISION OF THE CODE ON PREVENTINVE PROCEEDINGS OF INSOLVENCY AND OF INSOLVENCY - A FIRST STEP FOR THE HARMONIZATION OF THE EU MEMBER STATE'S LEGISLATIONS IN THIS AREA." Agora International Journal of Juridical Sciences 8, no. 1 (February 4, 2014): 184–89. http://dx.doi.org/10.15837/aijjs.v8i1.932.
Full textAbstract:
In order to improve and accelerate the insolvency with cross border implications, theCouncil has adopted the Council Regulation (EC) No 1346/2000 of 29 May 2000 oninsolvency proceedings establishing the common norms on the jurisdiction, recognition andapplicable law in this area, European norm which does not harmonizes the national materiallaw systems in the area of insolvency, thus it can be identified significant differences at anational legislative level regarding the insolvency in relation to fundamental considerationsof politics, structure and content, in other words, there are not unique insolvencyproceedings, with applicability throughout the European union. Nevertheless we consider thata first step in the achievement of a legislative uniformity was already taken, at least regardingthe unity regulation of certain preventive proceedings which will allow the avoidance ofinsolvency of the debtor, mentioning in this respect Law No 381/2009 on the preventiveconcordat and the ad-hoc mandate, whose provisions are taken from the new code on thepreventive proceedings of insolvency and of insolvency, code which eases the directapplication of the Council Regulation (EC) No 1346/2000.