The development of international commerce and the globalisation of economic relationships have promoted the wealth of nations but at the same time have increased the interdependence of the actors in the various sectors and of national economic systems. This interdependence has shown its downsides at the beginning of this century, when the collapse of Enron in the United States has involved many subsidiaries and branches in many countries, as well as other operators related with Enron's activities at various levels. Many other companies collapsed in the next few years, e.g. Parmalat, Budget Rent-a-Car, Swiss, Sabena, etc., with global reach and effects due to the wide territorial extension of their activities.
The crisis of the financial markets in 2008 brought about the collapse of several financial institutions, credit institutions and insurance undertakings, and increased the crisis of other industries. The cases are well known, from Lehman Brothers to Northern Rock, from Alitalia to La Seda Barcelona, from Nortel to Kaupthing and Fortis Bank, to Burani, and so on. This situation required a coordinated answer by the governments as concerns international financial help, supportive legislature and innovative insolvency procedures.
Indeed, at the end of the last century, the rationale of insolvency law had already started to change considerably with the enactment of restructuring and reorganisation procedures, which were considered a better response to the crisis of an undertaking than bankruptcy and liquidation, in so far as they permitted the continuity of the business and reduced job losses. In fact, the principal focus of modern insolvency legislation and business debt restructuring practices no longer rests on the liquidation and elimination of insolvent entities, but on the remodeling of the financial and organizational structure of debtors experiencing financial distress so as to permit the rehabilitation and continuation of their business. At a EU-level, an example of this new approach is the Commission Recommendation of 12 March 2014 on A new approach to business failure and insolvency
New legislation was approved in many countries and at international and regional level in order to meet the needs of the various industries vis-à-vis these trends and developments and to provide the best possible tools and means for cooperating internationally with the common goal of minimizing or at least reducing the effects of the crisis.
The course will be devoted to the analysis of such legislation and of the case-law that has developed in Europe (in particular, of EU Regulation 1346/2000 on insolvency proceedings then replaced by EU Regulation 848/2015) and in some non-EU countries, in particular in the U.S., in cross-border insolvency cases.
- National legal systems on insolvency proceedings: a comparative perspective.
- The specific issues concerning cross-border insolvency proceedings.
- Pursuing shared solutions for the governance of cross-border insolvency proceedings: the UNCITRAL Model law.
- Insolvency proceedings within the EU: from Regulation No 1346/2000 to Regulation 2015/848 (EIR).
- The scope of application of the EIR.
- Jurisdiction pursuant to the EIR: main and secondary insolvency proceedings.
- Recognition of insolvency proceedings.
- The law applicable to insolvency proceedings and to insolvency-related issues.
Prerequisites for admission
Prior attendance of a course of private international law and/or insolvency law is recommended
Assessment methods and Criteria
Oral exam at the end of the course, aimed at verifying the acquisition by students of the notions of the course and students' ability to critically analyse and solve legal issues through the re-elaboration of the knowledge acquired and the evaluation of the cases addressed over the course.
Attendance is compulsory. Students will be required to attend at least 75% of classes to be able to sit the exam.