The Rise and Fall of Regulatory Competition in Corporate Insolvency Law in the European Union

The Rise and Fall of Regulatory Competition in Corporate Insolvency Law in the European Union

Horst Eidenmüller

July 02 2019

In this paper, I discuss the rise and fall of regulatory competition in corporate insolvency law in the European Union.  The rise is closely associated with the European Insolvency Regulation (EIR, 2002), and it is well-documented.  The United Kingdom (UK) has emerged as the ‘market leader’, especially for corporate restructurings.  The fall is about to happen, triggered by a combination of factors: the recasting of the EIR (2017), the European Restructuring Directive (ERD, 2019) and, most importantly, Brexit (2019).  The UK will lose its dominant market position.  I present evidence to support this hypothesis.

         Regulatory competition in European corporate insolvency law happened by accident: it was the unwelcome consequence of the entering into force of the EIR in 2002.  The EIR was designed to eliminate forum shopping and to harmonize Member States’ jurisdiction and conflicts rules for international insolvencies.  However, in practice, it did not achieve this end.  The Regulation’s test for main insolvency proceedings, a company’s ‘Centre of Main Interests’, can be manipulated.  Forum shopping became almost a signature feature of the EIR, and the UK emerged as the ‘market leader’ for corporate restructurings in the European Union (EU).  The available data clearly confirms this assessment.  The popularity of the UK as a restructuring venue also stems from the attractiveness of the Scheme of Arrangement—a procedure that is not within the scope of the EIR.  Under the applicable European rules, restructuring decisions taken by courts in one Member State must be automatically recognized in all other Member States.

         The regulatory landscape for corporate insolvency law in the EU is changing.  The EIR was recast in 2017, the EU passed the ERD in 2019, seeking to harmonize Member States’ pre-insolvency restructuring regimes so that local businesses get local access to restructuring processes, and the UK will probably leave the EU in 2019.

         I argue that the recast EIR will not significantly affect forum shopping and regulatory competition in corporate restructurings.  However, the ERD will have such an effect, i.e. it will significantly reduce forum shopping and regulatory competition in corporate restructurings.  This is because the ERD mandates that Member States implement certain key features of pre-insolvency restructuring regimes by 2021, effectively ruling out radical legal innovations departing from the new European standard.  Unfortunately, the ERD is a ‘defective product’: it mandates inefficient procedures and should be repealed.

         Most importantly, Brexit will eliminate the dominant competitor in the European restructuring market, i.e. the UK.  This is because Member States will no longer be forced to automatically recognize decisions taken in UK restructuring proceedings.  It appears that the restructuring market already anticipates this effect: one can observe a decline of the popularity of the Scheme of Arrangement in cross-border cases from 2016 onwards.  I present evidence in the form of hand-collected data on cross-border Schemes of Arrangement to support this hypothesis.