Harmonization of legislation and cross-border insolvency proceedings – current trends and challenges

feature photo


* Articolul în limba română a fost publicat în Curierul Judiciar nr. 6/2016


PhD. Candidate Nicoleta Mirela Năstasie
Titu Maiorescu University, Bucharest, Romania




1. What is the harmonization of insolvency legislation and why is a burning issue?

In a globalised economy, insolvency proceedings are no limited geographically and influence many areas of law.

Member States of the European Union are in the process of reforming their insolvency laws and the modernisation of cross border insolvency is a current subject for the European politicians.

The European Regulation on insolvency proceedings is an important instrument harmonising procedural insolvency law. A substantive insolvency law at EU level hasn’t been created because the national systems of law and the domestic policies are much too different. In the recent years the European authorities have promoted the necessity of harmonisation in some areas of insolvency law, as an important step to encourage viable businesses and the market economy.

In the doctrine some terms have been used to define the process of obtaining a “higher degree of similarity”: unification, convergence, harmonisation, approximation. Harmonisation has been characterised as a process “ in which diverse elements of legal system are combined or adapted to each other in aim to create a coherent body of rules or principles”, a legislative activity, different from convergence, seen as a “ global phenomenon that transcends different legal orders”. [1]

Referring to the 2011“Motion for a European Parliament Resolution with Recommendations to the Commission on insolvency proceedings in the context of EU company law”, professor Bob Wessels suggested that, in order to adapt European insolvency law’s substantial and procedural forms to norms and principles characteristic to non-insolvency law domains, there “is much to be done” It is interesting the use of terms as “interaction, synchronisation, adjustment, unity, coherence” to describe this complex and coordinated process at EU level, realised by an organisation able to create and improve “a world-class European insolvency law and regulatory framework”.[2]

Harmonisation was also considered as a “standardization regarding issues implicating core insolvency concern”.[3]

In 2012, Professor Wessels and Ian Fletcher produced a Report, “Harmonisation of Insolvency Law in Europe”, commissioned by the Netherlands Association for Civil Law. The harmonisation process was defined as the activity of seeking “common ground wherever possible “in a “festina lente”(make haste slowly) operation, with the explanation that it would be inappropriate “to attempt to formulate one single model of insolvency law “.[4] Of course, the efficiency of an insolvency law is strongly connected with the “quality and competence” of those who apply the law and manage the procedures.

Trying to identify what issues can be harmonised, keeping in mind the “principle of subsidiarity of Community law”, it was emphasized the main goal of harmonisation as the reduction of forum shopping and the improvement of “forecast of creditors”.[5]

2. Harmonisation – essential tool for modified universalism, as a practical approach to international insolvency

In cross-border insolvency domain two opposed ideas were confronted: universalism versus territoriality.

Under universalism, the insolvency procedure with estate located in more than one jurisdiction is developed in the country where the center of main interests (COMI) is situated[6]; this procedure refers to all assets and creditors wherever they are placed.

The universalism was defined by the professor Jay Westbrook as “the administration of multinational insolvencies by a leading court applying a single bankruptcy law”. Consequently, the COMI jurisdiction of the debtor is the “controlling jurisdiction” for all proceedings and the assets situated in other jurisdictions “would be repatriated to the debtor’s home country“.[7] In this manner, small creditors bound to exercise their rights for claims in foreign jurisdictions could be in a disadvantaged position.

It was recognized that for developing countries the adoption of the universalistic approach could have negative consequences of competitive environment,[8] so the country that maintains territoriality course to insolvency is “in a superior economic position to one subscribes to a universalist approach”.

Territoriality principle means that the choice of the court and the choice of the law depend on the location of the debtor’s estate, and for each jurisdiction where the assets are situated different insolvency proceeding must be opened, judged and managed according to the local law. The territoriality approach is objectionable because of the increasing administrative cost, less possible coordination between courts, predictability and reorganization functional programs.

In order to find efficient solutions in this matter, it was proposed a compromise model of approaching with components of both theories, named “modified universalism”.

In this pattern, founded on the principle of universality, it was accepted that cross border insolvency proceedings have to be controlled and administered by a single one, under the law of the state where it commences. The protection of local creditors may be possible by local courts, having “the discretion to evaluate the fairness of the home country procedures[9] under the national public policies.

We should observe that modified universalism, named in the recent Romanian article as „controlled universalism”[10] was embraced by international community, as in the United Nations Commission International Trade Law Model Law on Cross-Border Insolvency,  Chapter 15 of the U.S. Bankruptcy Code, the American Law Institute’s Global Principles for Cooperation in Global Insolvency Cases, EU Insolvency Regulation.[11]

The modified universalism it is seen as „a form of incrementalism that moves for gradually increasing subjugation of sovereignty on seemingly less threatening procedural matters, a form of acclimation to the imposition of foreign law upon domestic insolvency proceedings”.[12]

The Insolvency EU Regulation ensures the application of modified universalism.[13] One example of this practical approach keeping in mind the interests of local creditors is the secondary proceedings opened where the debtor has an establishment, having territorial effects.

Observing the scholars’ descriptions and analyses of this type of approaching of international insolvency, it can be defined as a “moderate universalism”.

In the academic world of insolvency law is not questionable anymore that modern reality necessitates a modified universalism. It remains to establish the degree of territoriality required by the current political environment and the goal of protecting interests of local creditors.

And, if harmonization is instrumental to the concept of universalism, „ reducing conflicts among legal regimes[14], it is important to find out the proper methods and mechanisms for it and, in this way, to develop the most efficient form of modified universalism.

3. Current solutions for the reform of international insolvency

In the complex world of cross border insolvency, with an increasing number of cases arising, it is expressed more frequently the need for efficient and effective international standards and frameworks as a fundamental condition for success. Insolvency professionals and scholars share alike the concern to find proper mechanisms to ensure that insolvency proceedings are able to act with the realities of a worldwide economy.

The INSOL Europe Report of April 2010, entitled Harmonisation of Insolvency Law at EU Level, presented to the European Parliament Committee on Legal Affairs, revealed the idea of substantive harmonisation in some areas of insolvency laws across Europe as an important and feasible step.

In the Report from 2012 Ian Fletcher and Bob Wessels[15] described as “working methods to achieve harmonisation” legal measures available to the EU Commission to exercise its powers (regulations and directives, decisions, recommendations and opinions) and also insolvency soft law instruments as protocols. European legal scholarships, based on historic and comparative studies, realised by “multi-jurisdiction groups of researchers and practitioners”, stated that obtaining convergence in insolvency law is a stepwise process. It is retainable the fine observation that the comparable process of the “Europeanization of contract law” started over 20 years ago could be a learning experience for European authorities drafting the future activities and “the most preferable approach”.

In a 2012 study, analysing the economic effects of reforming insolvency law in Europe   in some divergent practical aspects focussed on the judicial system, the insolvency profession, reporting and transparency, it was emphasised that harmonisation of minimum standards for European insolvency would introduce “a greater level of predictability to creditors and other stakeholders, boost investment and enhance the ‘single market’ benefits arising from a more integrated economic”. [16]

The doctrine also revealed in 2013 two alternative options to regulate cross-border insolvencies in the European Union: the selection of a “choice model” of insolvency law by the companies or, an opposite solution, the “full harmonisation of insolvency law at EU level, including distributional rules”. [17] It is obvious that each alternative is an extreme one, with small chances of implementation.

Paul Omar, Professor of International and Comparative Insolvency Law, referring in 2015 to the precise direction of European initiatives, he explains that is difficult to anticipate it but is a reality, because “harmonisation is no longer the idea that dare not speak its name in polite society”. [18]

On the other hand, the choice of a Model Law is described in 2015 as a viable solution for international cooperation, when international conventions or other binding instruments are not accepted as support for harmonisation because of the substantial divergences between national laws or the lack of chances of reaching such agreements.[19] In some areas of insolvency law, non-convention instruments named “soft law” could contribute to the promotion of harmonisation because of a “greater flexibility and adaptability”. From this point of view, it is significant the experience of UNCITRAL choosing the Model Law, desirable in order to give states the ability to move toward harmonization in a gradual way and to help the modernisation ,,of domestic laws in developing countries.[20]

A report finalised in 2015, as a result of complex research relating to insolvency off-shore jurisdictions involving an important number of insolvency professionals,[21] concluded that a greater collaboration and harmonisation between jurisdictions can be obtained using a mix of formal mechanisms and informal strategies for cooperation. First, a strong and effective legislative framework was considered necessary because discrepancies in domestic insolvency laws cannot be removed just by market movement or stakeholders’ activity.  Keeping in mind the various differences between local jurisdictions determined by political, historical or cultural circumstances as significant obstacles to insolvency harmonisation, the professionals considered appropriate to take measures at EU level in this respect. It was also expressed the value of a powerful court infrastructure or a greater cooperation, collaboration between all parties involved, judges, practitioners , researchers, politicians.

4. How does the European Commission try to transform the harmonisation of insolvency law in a practical reality from an ideal?

In 2011 the European Parliament in the  Report with Recommendations to the Commission on Insolvency Proceedings in the context of EU Company Law(document A7-0355/2011), described the necessity of harmonisation in some areas of “substantive insolvency law at EU level”, referring  to the conditions for opening proceedings, the filing of claims, some problems of restructuring plans.

With the 2012 Communication from the Commission on a New European Approach to Business Failure and Insolvency (document COM (2012) 742 Final), the European Commission emphasises the concern that some differences between national insolvency laws could represent obstacles to an efficient internal market, promoting the idea of giving a “second chance” for honest entrepreneurs.[22]

As an important stage to the modernisation of insolvency law, the European Commission  published in 2014  a text, Recommendation on a New European Approach to Business Failure and Insolvency (document COM 2014) dealing with four areas seen as priorities for establishing minimum standards : preventive restructuring procedures, clarifications on some issues dealing with restructuring plans, the appointment of a mediator.

The Commission expected action from Member States by March 2015 and suggested the possibility of creating a common framework for Member States.[23]

The Regulation 2015/848 entered into force in 25 June 2015 and it will be applicable to relevant insolvency proceedings from 26 June 2017, with some exceptions, recasting the previous discipline. The Regulation adopts a new rescue and recovery perspective on insolvency, regarding insolvency not only as liquidation but also facilitating the survival of businesses and presenting a second chance for entrepreneurs, making cross-border insolvency proceedings more efficient, developing  the proper functioning of the internal market. The main procedural provisions of the European Insolvency Regulation have been improved, but differences between national substantive insolvency laws could encumber the application of laws and the proceedings’ coordination, could create some problems of harmonisations of the insolvency legislation with the actual European standards and future objectives.

The European Commission launched on 18 February 2015 a landmark project to ‘… unlock funding for Europe’s businesses and to boost growth in the EU’s 28 Member States with the creation of a true single market for capital’, The Action Plan on building a Capital Markets Union. On 30 September 2015, the Commission adopted an action plan setting out 20 key measures to achieve a true single market for capital in Europe. The CMU Action Plan, which is intended to help build a true single market for capital across the 28 EU Member States, is a medium-term project with some important early initiatives (Annex 1 in the Action Plan provides a full list of actions and an indicative timeline).

Then, its projects for 2016 include  six priority areas – financing for innovation, start-ups and non-listed companies,  making it easier for companies to enter and raise capital on public markets,  investing for long term, infrastructure and sustainable investment, fostering retail and institutional investment,  leveraging banking capacity to support the wider economy and facilitating cross-border investing. One of the most important and concrete steps announced by the Commission, which will require follow up by market participants and financial institutions is “the proposal for legislation on business insolvency and early restructuring”.

Furthermore, the “Five Presidents’ Report” of 22 June 2015 on “Completing Europe’s Economic and Monetary Union”(12) lists the area of insolvency law among the most important bottlenecks preventing the integration of capital markets.

The Commission is expected to propose a legislative initiative on business insolvency by the end of 2016.

Meanwhile, in March 2016 the Inception Impact Assessment Report was promoted by the EU Commission with the launch of a study on economic aspects related to insolvency.

The public consultation on the insolvency initiative was launched on 23 March 2016. The public consultation was opened for 12 weeks until 14 June 2016, to search stakeholders’ views on different areas and the efficiency of national insolvency frameworks, to identify the key -aspects to be dealt with in the Commission’s future insolvency initiative.[24]

EU Commission decided the organisation of a Conference at 12 July 2016 to the theme “Convergence of insolvency frameworks within the European Union – the way forward” to discuss how to create an appropriate insolvency structure.

According to documents provided by EU Commission, the key areas for harmonisation are preventive restructuring procedures and a discharge of debt; common minimum rules for directors’ duties and liabilities, for the ranking of claims, for insolvency practitioners; a simplified approach to SMEs insolvency; protection of investors; for the insolvency of natural persons  provisions on the availability of insolvency procedures, both debt restructuring and liquidation procedures; provisions on the discharge of debt of natural persons other than entrepreneurs after a reasonable period of time.[25] The subjects are far from being simple debatable and brought to a common denominator.

In December 2015 the European  Commission set up an Expert Group consisting of 22 independent (non-governmental) experts, mainly legal professionals or academics from 12 EU countries, who assists the Commission in the preparation of a potential legislative proposal containing minimum standards for a harmonised restructuring and insolvency law in the EU.

The Reports from the meetings of the Expert Group on Restructuring and Insolvency Law from January-March 2016 reveal the intensive activity for defining and establishing key elements of the new instrument in some areas as conditions and contents of restructuring- tools, the protection of new financing and other elements of the future preventive restructuring “framework” of the EU, insolvency and restructuring of [cross-border] groups of companies. [26]

5. Judicial Cooperation – complementary instrument for structural and functional similarities in the EU  insolvency

It is not debatable that Treaty on the Functioning of the European Union( TFEU) does not provide explicit legal basis for measures ”to the approximation of insolvency law“, but Article 114 TFEU (measures for the approximation of the provisions laid down by the law ) and Article 81 TFEU(cross border judicial cooperation) “may serve at legal basis for harmonization ”. [27]

Article 114 TFEU is considered the foundation for the harmonisation of insolvency laws within the EU, by ordinary legislative procedure, respectively by measures enforceable for the Member States.

Article 81 TFEU establishes the EU capacity to promote judicial cooperation in civil matters having international involvement, so as to “establish progressively an area of freedom, security and justice.”

According to TFEU provisions, to attain the goal of judicial cooperation, it is possible for EU to adopt legal acts for the approximation of laws of the Member States.[28]

But is the legislative intervention sufficient and strong enough to reach this scope in a short time, or a  concentrate action of judiciary, professionals and other actors involved in international insolvency is necessary to develop an efficient process ?

Keeping in mind the multiplicity of problems and challenges that international insolvency arises, courts and professionals are seeking for practical and innovative solutions even in the direction of harmonization of some provisions and practices. The difficulties occurring in the process of a new legal order’s development imply a more focused cooperation initiatives from all actors dealing with cross border insolvency.

In the light of those ideas, there is an open attitude to find “standard”, “best practices” and “guidelines” for practitioners’ and courts’ communication and cooperation in cross border insolvencies cases, promoted by professionals associations and scholars. A recent example is the Global Principles for Cooperation in international cases from the American Law Institute and the International Insolvency Institute, elaborated by Ian Fletcher and Bob Wessels.

Also the EU Cross-Border Insolvency Court-to-Court Cooperation Principles and Guidelines produced by a team of scholars of Leiden Law School and Nottingham Law School (2013-2014) in collaboration with some fifty experts, including 25 judges representing EU countries, finalised in February 2015,  contain a set of 26 EU Cross-Border Insolvency Court-to-Court Cooperation Principles (‘EU JudgeCo Principles’) and 18 EU Cross-Border Insolvency Court-to-Court Communications Guidelines (‘EU JudgeCo Guidelines’), which represent an important step to make national legal systems “work together” without unifying or approximating them, nevertheless obtaining a “limited harmonisation” of insolvency law.[29]

6. Instead conclusions – themes for reflection

Full harmonisation of insolvency law, as unification or even approximation understanding, presented as a possible option for the reform of EU legislation, it doesn’t look like a real possibility in the time being. Such unity of vision is yet to be achieved across the 28 Member States, and it may take some time, much patient and effort before consensus can emerge. Consequently it is essential to establish which areas demand harmonisation and what levels of adequacy are required.

It is appreciable the sustained effort made for removing or reducing the existing disparities in the European Union, as respect of insolvency legislation and cross-border  proceedings.

But “a good reporter” revealing the stages of this process has to address a legitimate question: what are the place and the role of developing nations and the States of South – East of Europe in this new system of values and principles that are promoted at European level?

Another subject of analyses: what will be the effects of UK Brexit and leaving the

EU on the actual and future  harmonization process initiated by the European Commission, knowing the important role played by UK in these activities and its unique legislative and practical  mechanisms in insolvency matters ? It will be this a step forward toward a legislative proposal of EU Commission, an easier creation of EU Insolvency framework? It would bring this new situation some changes in view of key areas of insolvency domain? On the contrary, it would represent a step back of the process, generating the unwillingness of states to move toward substantive harmonisation of insolvency law to a binding regime?

It is also significant to follow how the future legislative initiatives of European Commission for harmonisation of Insolvency Law will connect with EIR and other international law regulations, as Brussels I and Rome I.  Actually, the Expert Group from EU Commission has already started to wonder how the scope and the dispositions of the recast EIR will relate to the future EU preventive restructuring procedure through the conditions and requirements of the EIR?

Therefore we have to be prepared to engage ourselves to the long-term view that by regular and sustained discussions we may arrive at agreement on the fundamentals on European insolvency law.



[1]  Ian Fletcher and Bob Wessels, Harmonization of Insolvency Law in Europe, Report 2012 Netherlands Association for Civil Law, Deventer: Kluwer 2012, at 107-135. (ISBN 978-90-13-11144-6)

[2]   Bob Wessels, Amending the EU Insolvency Regulation: Shaken or Stirred?, in: Rebecca Parry (ed.), The Reform of International Insolvency Rules at European and National Level, Nottingham, Paris: INSOL Europe 2011, pp. 125 – 135. ISBN 978-0-9558364-9-7, https://www.insol.org/_files/Fellowship%20Class%20of%202014%20-%202015/Literature/Session%20Four/Wessels%20-%20Shaken%20or%20Stirred%202011.pdf

[3] The prospect of Standardization of Insolvency Laws in Europe- Learning from UNCITRAL ‘s Work on Enterprise Groups and Directors’ Duties , Irit Mevorach , in “Substantive Harmonisation and Convergence of Laws in Europe, INSOL Europe, 2012, at 18;

[4] Spreading the Gospel: The Mission of Insolvency Law, and the Insolvency Practitioner, in the early Twenty-First Century, Ian Fletcher QC, in The grand project: reform of the European Insolvency Regulation. Technical series, Nottingham: INSOL Europe, 2014. ISBN 9780957076181

[5] The Future of the European Regulation on Insolvency Proceedings , Jean Luc Vallens, in „The Reform of International Insolvency Rules at European and National Level, INSOL Europe, 2011,at  121

[6] Recognition and Enforcement in Cross-Border Insolvency Law: A Proposal for Judicial Gap-Filling, Sandeep Gopalan and Michael Guihot, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2680447

[7] Discussed in Toward modified universalism: the recognition and enforcement of cross border insolvency judgements and orders in MALAWI, KALEKENI ELSON KAPHALE , University of Malawi, 2013, at 10-12 https://unov.tind.io/record/64293,

[8] For details, Lucian Arye Bebchuk & Andrew T. Guzman, An Economic Analysis of Transnational Bankruptcies,  42 J.L. & ECON. 7759 (1999)

[9] The United States Bankruptcy Re Maxwell Communication Corporation, 170 BR 800 ( Bank SDNY 1994)


[10] Proceduri teritoriale de Insolventa, Luiza Cristina Gavrilescu in Analele Stiintifice ale Universitatii Al.I.Cuza Iasi, Tomul LVI, 2010,


[11] Report of the United Nations Commission on International Trade Law on the Work of its Thirtieth Session, UNCITRAL, 30th Sess, Supl No 17, UN Doc A/52/17, (1997) 1 at 221 [The Thirtieth Session Report]; American Law Institute, Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases: Report to ALI (March 30, 2012)/The American Law Institute and the International Insolvency Institute, (Philadelphia, PA: Executive Office, American Law Institute, 2012) [ALI Global Principles]. See Fletcher, Treatment of Security Rights, supra note 4 at p

[12]  See John A. E. Pottow, Procedural Incrementalism: A Model for International Bankruptcy, 45 VA. J. INT’L L. 935, 952 (2005); Charles W. Mooney, Jr., Harmonizing Choice-of-Law Rules for International Insolvency Cases: Virtual Territoriality, Virtual Universalism, and the Problem of Local Interests, 9 BROOK. J. CORP. FIN. & COM. L. 129, 141–44 (2014);

[13]  EC Regulation n. n. 1346/2000 on insolvency proceedings; EU Regulation n. 848/2015, published in the Official Journal n. L 141 on 5 June 2015 (the “Recast Regulation”) amending the EC regulation n. 1346/2000 on insolvency proceedings., for Regulation (EU) 2015/848 of the European Parliament and the Council of 20 May 2015 on insolvency proceedings (recast), see O.J. L 141/19 of 5 June 2015( http://eur-lex.europa.eu/legal-content/EN/TXT/PDF)

[14] J. L. Westbrook  A global Solution to Multinational Default”, 2000, Mich. L. Rev. 2276, at.2284

[15] Ian Fletcher and Bob Wessels, Harmonization of Insolvency Law in Europe, Report 2012 Netherlands Association for Civil Law, Deventer: Kluwer 2012, pp. 107-135. (ISBN 978-90-13-11144-6)

[16] Potential economic gains from reforming insolvency law in Europe, AFME – The Association for Financial Markets in Europe, Frontier Economics and Weil, Gotshal & Manges  (2016),


[17] Federico M. Mucciarelli, Not Just Efficiency: Insolvency Law in the EU and Its Political Dimension,  , European Business Organization Law Review , June 2013, Volume 14, Issue 2, at 175-200

[18] Paul Omar, Modern prospects for European insolvency law harmonisation, 15 September 2015,


[19] Sandeep Gopalan and Michael Guihot, Recognition and Enforcement in Cross-Border Insolvency Law: A Proposal for Judicial Gap-Filling, 2015, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2680447

[20] See United Nations Commission on International Trade Law, UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation, at 13, U.N. Sales No. E.10.V.6 (2010),http://www.uncitral.org/pdflenglish/texts/insolven/PracticeGuideEbook-eng.pdf

[21] From discord to harmony: the future of cross-border insolvency, Grant Thornton UK LLP and South Square research report, 2015 , http://www.southsquare.com/files/SouthSquare_GT_Report_From_discord_to_harmony..pdf

[22] European Commission: Communication “A new European approach to business failure and insolvency” COM(2012) 742,


[23] European Commission Evaluation of the implementation of the Recommendation of 12 March 2014 on a new approach to business failure and insolvency, 30.9.2015, http://ec.europa.eu/justice/civil/commercial/insolvency/index_en.htm;

[24] European Commission, Consultation on an effective insolvency framework within the EU(23 March 2016 – 14 June 2016,  http://ec.europa.eu/justice/newsroom/civil/opinion/160321_en.htm;

[25] Inception Impact Assessment, Initiative on insolvency –European Commission, 2016/JUST/025 – 03.03.2016, http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_just_025_insolvency_en.pdf

[26] Group of experts on restructuring and insolvency law (E03362), European Commission, Report from the Fifth and Sixth meetings of the Expert Group on Restructuring and Insolvency Law 24-25 May 2016


[27] Ian Fletcher and Bob Wessels Perspectives on harmonisation of insolvency law in Europe, in Harmonization of Insolvency Law in Europe, Report 2012 Netherlands Association for Civil Law, Deventer: Kluwer 2012, (ISBN 978-90-13-11144-6)

[28] Rafał Mańko, EU competence in private law – The Treaty framework for a European private law and challenges for coherence, European Parliamentary Research Service,  January 2015 — PE 545.711


[29] American Law Institute, Transnational Insolvency: Cooperation Among the Nafta Countries; Principles of Cooperation Among NAFTA Countries, 2003, at 3; EU Cross-Border Insolvency Court-to-Court Cooperation Principles, Final Public Draft, 2014, at 27; for details of project see  http://www.tri-leiden.eu/project/categories/eu-judgeco/

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