Courts and Computers, A Cosy Couple?
Already on 26 June 2016 Article 86 of the EU Insolvency Regulation (EIR Recast), on information on insolvency laws, will apply. The EIR Recast itself will enter into force 26 June 2017. Article 86 (‘Information on national and Union insolvency law’) however is a forerunner. It will apply from 26 June 2016. What does it say? It contains three paragraphs:
(1) The Member States shall provide, within the framework of the European Judicial Network in civil and commercial matters established by Council Decision 2001/470/EC, and with a view to making the information available to the public, a short description of their national legislation and procedures relating to insolvency, in particular relating to the matters listed in Article 7(2),
(2) The Member States shall update the information referred to in paragraph 1 regularly, and
(3) the Commission shall make information concerning this Regulation available to the public.
The rationale for Article 86 is laid down in recital (76), which says: ‘In order to improve the provision of information to relevant creditors and courts and to prevent the opening of parallel insolvency proceedings, Member States should be required to publish relevant information in cross-border insolvency cases in a publicly accessible electronic register. In order to facilitate access to that information for creditors and courts domiciled or located in other Member States, this Regulation should provide for the interconnection of such insolvency registers via the European e-Justice Portal. Member States should be free to publish relevant information in several registers and it should be possible to interconnect more than one register per Member State.’
In practice, at least for me, to get access to the relevant sources is not unproblematic. However, with some help of a Leiden insolvency researcher I found it. Say, you’re from England, France or Poland (practitioner of judge), and you want to understand some insolvency matters from the Netherlands, this is what you find e-justice.europa.eu/content_insolvency-361-nl. Yes, just a few lines, in Dutch (!), updated over a year ago. Information concerning the twelve items mentioned in Article 7(2) EIR Recast (still) lacks.
On the site one also finds a link to insolvency registers, see e-justice.europa.eu/content_interconnected_insolvency_registers_search-246-nl. Click, and after a cheerful ‘Welcome to the Insolvency Registers interconnection search interface! This functionality of the European e-Justice Portal allows you to search for insolvent entities, either natural or legal persons, within the EU’, it says that this service is provided by the European Commission in cooperation with the participating Member States: Czech Republic, Germany, Estonia, Netherlands, Austria, Romania, Slovenia. It is still in a voluntary phase, probably welcoming twenty other Member States within some six months. It adds: ‘Please note that participating registers may have specific national rules on the search criteria necessary, how long data is retained, etc. Please take a few moments to read more on this on our general information page. e-justice.europa.eu/content_interconnected_insolvency_registers_search-246-en.
An eventful journey lies ahead, unless harmonisation attempts also focus on these details. I then just was curious how the Dutch Judiciary is maintaining one of my favourite sites, www.rechtspraak.nl (the one with court decisions, in Dutch), especially the information provided in English. Click. No ‘welcome’ (that’s fine), but simply the direct Dutch way ‘The following site provides short information regarding the Dutch judicial system, see www.rechtspraak.nl/English‘. At the bottom I found a link ‘international insolvency’, see www.rechtspraak.nl/English/Pages/International-Insolvency.
There it is said that the European Commission has proposed an amendment of the Insolvency Regulation, emphasizing court-to-court cooperation. Hmmm. It’s not an amendment but a fully new regulation, repealing the existing one (see Article 91 EIR Recast). It then refers to the related articles (Hmmm, it refers to the proposal for the Recast, not the ones in the Recast itself). It then provides that cooperation with courts in The Netherlands is subject to rules of best practices for cooperation in cross-border insolvency cases as set out in principles and guidelines on communication and cooperation adopted by European and international associations active in the area of insolvency law, ‘… such as the JudgeCo Project and INSOL International’.
‘JudgeCo project’ is the umbrella name for its outcome, being the EU Cross-Border Insolvency Court-to-Court Cooperation Principles (‘EU JudgeCo Principles’) and its related EU JudgeCo Guidelines. But Hmmm, the reference to INSOL International is not easy to understand. I am not aware of any guidelines suggested by INSOL.
Should it refer to ‘UNCITRAL’? Then follows that insolvency practitioners and government organizations dealing with ‘bankruptcies’ (Hmmm, the English version of the EIR Recast, but also the original Regulation does not use this term), can make inquiries on cooperation in insolvency proceedings via: Insolventie.RB-MNL.Utrecht@rechtspraak.nl.
Concluding: tiny steps taken, long march to go.