EU Courts Can Rely on Soft Law Principles for Cooperation in Cross-border Insolvency Cases

In autumn 2015 the EU Cross-Border Insolvency Court-to-Court Cooperation Principles (‘EU JudgeCo Principles’) were published.

These 26 (non-binding) principles encompass subjects such as the objectives of cooperation in cross-border insolvency cases, case management by a court, the equal treatment of creditors, the approach to a stay or moratorium, cooperation in achieving a cross-border sale or an international reorganisation plan, and principles about judicial decisions itself, such as the giving and publication of reasons. Several principles relate to aspects of the conduct of the proceedings, such as language, the provision of notice to creditors and insolvency practitioners, and the authentication of documents. The Principles are accompanied by 18 EU Cross-Border Insolvency Court-to-Court Communications Guidelines (‘EU JudgeCo Guidelines’), a set of very practical guidelines to facilitate communications in individual cross-border cases.

The EU JudgeCo Principles and Guidelines have been drafted in such a way that they can be applied easily in cross-border insolvency practice. They complement Articles 41-44 of the European Insolvency Regulation (recast), in which a duty for courts to communicate and to cooperate cross-border is included. The overall objective is to guide and strengthen efficient and effective communication between courts in EU Member States in insolvency cases with cross-border effects.

The EU Judge-Co Principles and Guidelines were produced by a team of scholars from Leiden Law School (led by myself) and Nottingham Law School (Professor Paul Omar) over a period of 2.5 years (beginning in early 2013) in collaboration with some 50 experts, including 25 judges representing just as many different countries. The texts reflect (and are designed to help overcome) some present obstacles to communication and cooperation between courts in EU Member States, including formalistic and detailed national procedural law, concerns about a judge’s impartiality, uneasiness with the use of certain legal concepts and terms, and language. The texts also build on existing experience and tested resources, especially in cross border cases in North America, but are structurally set into an EU insolvency law context.

The project was funded by the European Union and the International Insolvency Institute (III). The draft texts have been tested as to their suitability in practice by the group of experts mentioned, as well in during training and discussion sessions with over 100 judges, with positive results. Of course, the proof will be in the concrete use in practice of the EU JudgeCo Principles. In the near future within the European Union (particularly given the recast of the Insolvency Regulation) judicial cooperation and communication will be a cornerstone in the efficient and effective administration of insolvency cases. Insolvency judges understand the challenges international business engender and I am confident that the Principles will significantly contribute to the architecture of European insolvency law and an efficient and trustworthy role for courts therein. The EU JudgeCo Principles and Guidelines certainly can serve as a significant guide. 

A book has been published by Eleven International Publishing in The Hague. For related (preparatory) documents, materials, the text of the JudgeCo Principles as well as the Guidenlines please visit this page. 

Bob Wessels is Emeritus Professor of International Insolvency Law at the University of Leiden (the Netherlands). He is an External Scientific Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.