Guest Editorial

• DOI: http://doi.org/10.1002/iir.1281
• Published date: 01 December 2017
• Author: Tuula Linna
• Date: 01 December 2017

Guest Editorial

In Europe, much has happened with respect to insolvency proceedings. The new

European Insolvency Regulation (‘Recast EIR’) has been applicable since this

summer, and the EU Commission proposal for a Directive on preventive

restructuring frameworks, second chance and measures to increase the efficiency

of restructuring, insolvency and discharge procedures,

1

(‘Draft Directive’) is subject

to discussions within the Council and its preparatory bodies. The forthcoming

Directive aims to harmonize some parts of the Member States’substantive insol-

vency regimes. Organizations and networks, such as INSOL Europe, European

Law Institute and the Conference of European Restructuring and Insolvency

Law (‘CERIL’),

2

established 2016, are working actively in the field.

Thus far, the insolvency procedure itself has been in the spotlight, for example,

in the discussion of how to coordinate cross-border proceedings (between main/

secondary proceedings and in a group of companies) and to unify the national

proceedings with a view to improving the functioning of the Internal Market.

However, dispute resolution in the insolvency context has attracted less discussion.

Some attention has been paid to ancillary actions which derive directly from the

insolvency proceedings and are closely linked with them, such as avoidance actions

(see Articles 6 and 16 of the Recast EIR), yet the normal disputes which fall within

the scope of the Brussels I Regulation have not been given much attention.

Disputes arising in the insolvency context may form a barrier against quick and

efficient insolvency proceedings. Such disputes may concern, inter alia, the existence

or amount of a creditor’s receivable, property belonging to the estate, allowance

disputes in group of companies, executory contracts or the position of the equity

holders.

Regarding insolvency proceedings, we can say that steps have been taken to

move from a liquidation culture towards a restructuring and discharge culture,

but what about the adversarial litigation culture concerning the disputes in the

insolvency context?

In the US, most bankruptcy courts have adopted some kind of alternative

dispute resolution (‘ADR’) system by using methods of arbitration and mediation.

The US Alternative Dispute Resolution Act of 1998 also requires the use of ADR

in adversary proceedings in bankruptcy (see also 28 U.S. Code § 651). In Europe,

mediation could offer a flexible way to resolve international commercial disputes

in the insolvency context. Mediation may be less expensive and faster than

1. COM (2016) 723 final.

2. See website at: <www.ceril.eu>.

Copyright © 2017 INSOL International and John Wiley & Sons, Ltd Int. Insolv. Rev., Vol. 26: 243–245 (2017)

Published online in Wiley Online Library

(wileyonlinelibrary.com). DOI: 10.1002/iir.1281