Transcript Academic Administration Manager – role issues

The JudgeCo Principles
and Guidelines 2014
Co-funded by the
Civil Justice Programme
of the European Union
Co-funded by the
International Insolvency
Institute
Disclaimer
This publication has been produced with the financial support of the Civil
Justice Programme of the European Union. The contents of this
publication are the sole responsibility of Leiden University and/or
Nottingham Trent University and can in no way be taken to reflect the
views of the European Commission.
The JudgeCo Project
Rationale:
• Renewed recital 20
• Two new recitals (20a & 20b)
• Renewed Art. 31
CoCo between liquidators
• New Art. 31a
CoCo between courts
• New Art. 31b
CoCo between liqs/courts
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The JudgeCo Project
Recital 20 Changes:
The main condition here is that the various liquidators and the
courts involved must cooperate closely, in particular by
exchanging a sufficient amount of information…
In their cooperation, liquidators and courts should take into
account 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.
Recitals 20a and 20b refer to cooordination between groups
and the possibility of “procedural consolidation”.
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The JudgeCo Project
Article 31 Changes:
Cooperation and communication between liquidators
1. The liquidator in the main proceedings and the liquidators
in the secondary proceedings shall cooperate with each other
to the extent such cooperation is not incompatible with the
rules applicable to each of the proceedings. Such cooperation
may take the form of agreements or protocols…
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The JudgeCo Project
Article 31a:
Cooperation and communication between courts
• 1. In order to facilitate… coordination… a court… shall
cooperate with any other court … to the extent such
cooperation is not incompatible with the rules applicable to
each of the proceedings. For this purpose, the courts may,
where appropriate, appoint a person or body acting on its
instructions.
• 2. The courts… may communicate directly with, or to request
information or assistance directly from each other provided
that such communication is free of charge and respects the
procedural rights of the parties to the proceedings and the
confidentiality of information.
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The JudgeCo Project
Article 31a (cont.):
• 3. Cooperation may be implemented by any appropriate
means, including
• (a) communication of information by any means considered
appropriate by the court;
• (b) coordination of the administration and supervision of the
debtor’s assets and affairs;
• (c) coordination of the conduct of hearings,
• (d) coordination in the approval of protocols.
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The JudgeCo Project
Article 31b:
Cooperation and communication between liquidators
and courts
1. In order to facilitate … coordination…,
(a) a liquidator in main proceedings shall cooperate and
communicate with any court… and
(b) a liquidator in secondary or territorial insolvency
proceedings shall cooperate and communicate with the court
[in]… main proceedings,
2. The cooperation… shall be implemented by any
appropriate means including the means set out in Article
31a(3) to the extent these are not incompatible with the
rules applicable to each of the proceedings.
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The JudgeCo Project
Cooperation Templates:
European Communication and Cooperation Guidelines
For Cross-border Insolvency (2007) (“CoCo Guidelines”)
18 in number endorsed by INSOL Europe, inspired by “Soft
law” / best practices
Promotes coordination, using ‘Protocols’ (includes “Checklist
Protocol”)
Referred to in BenQ Holding (NL–DE), Automold (DE-UK),
Landsbanki-Icesave, Kaupthing, Lehman Brothers Holdings
Inc. (LBHI) (in draft-global protocol), PIN AG.
ALI-III project “Global Principles for Cooperation in
International Insolvency Cases” (2012)
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The JudgeCo Project
Project Members:
Professor Bob Wessels
Dr Paul Omar
Professor Jan Adriaanse
Dr Bernard Santen
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The JudgeCo Project
Objective:
to develop ‘guidelines’, ‘best practices’ and ‘standards’ for
communication and cooperation in insolvency cases between
courts in the European Union. The result should lead to a set
of “EU Cross-Border Insolvency Court-to-Court Cooperation
Guidelines”:
(i) ensuring as far as possible that the EU Insolvency
Regulation works in practice, to efficiently and effectively
deal with a debtor’s estate;
(ii) fitting the current environment where solutions have been
developed based on models reflecting cooperation and
communication;
(iii) guaranteeing the organisation and conduct of a fair legal
process and ensuring the fair representation of stakeholders
concerned in insolvency processes.
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The JudgeCo Project
Project Workstreams:
•Workstream 1 (January 2013-September 2013)
– Developing surveys with help of a representative group of
around 40 experts (Chair, Professor Ian Fletcher, UCL)
– Study of 5 Codes on Independence/Integrity of Judges
– Redrafting Global Principles and CoCo Guidelines
•Workstream 2 (September 2013-July 2014)
– Capacity building by individual invitations to judges at
international conferences
•Workstream 3 (July 2014-December 2014)
– Training phase at various locations
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The JudgeCo Project
Principles (26 in toto):
1 International Status: non-interference with court
independence, IP supervision role, IP ethics, duties; no
substantive rights created.
2 Public Policy: non-interference with public policy exception.
3 Overriding Objective:
(i) enabling cooperation;
(ii) due regard to interests; fair and proportionate action;
(iii)-(iv) good faith and cooperation duties;
(v) regard to international origin and uniformity.
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The JudgeCo Project
Principles:
26 “Application by Analogy”: Principles to apply by analogy
to international cases not under EIR.
4 Aim:
(i) facilitating coordination (incl. protocols);
(ii) promoting efficient and timely coordination, preservation
of global value, information sharing and cost reduction;
(iii) (within case administration) respecting creditors’
interests, cost reduction, proportionate management
and efficient and timely action.
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Principles:
5 Case Management:
(i) coordination and harmonisation imperatives;
(ii) (court role) efficient and timely disposition, case
management through consultation, determination and
sequence of stages, organising status conferences,
proper information for IPs and creditors;
(iii) (IP role) the same (direction of information to the court).
6 Equality of Arms: full and fair opportunity to present and
challenge evidence, to be notified of legal requirements, urgent
actions temporary in nature and subject to notice and appeals.
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Principles:
7 Decision and Reasoned Explanation: orders promptly
made, schedules through consultation, oral orders written
down forthwith, identification of material details in orders,
legal and evidentiary grounds in support, prompt publication.
8 Stay or Moratorium: possibility of moratorium, reasonable
restraints on parties, relevant relief and clear exceptions,
publication and appeal rights.
9 Non-Discriminatory Treatment: no discrimination on
grounds of personality, domicile, nationality, registered
seat/residence or in respect of the nature of the claim.
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The JudgeCo Project
Principles:
10 Modification of Recognition: opening of secondaries can
be postponed if fraud or lacak of jurisdiction in main cases;
such decisions can also be revoked.
11 Reconciliation of Stays or Moratoriums in Parallel
Proceedings: courts to minimise conflict between multiple
stays/moratoriums.
12 Abusive or Superfluous Filings: dismissal of secondary
cases if no forum interest, rules permit and creditors not
unduly prejudiced.
13 Direct Access: main liquidator to enjoy direct and
necessary access to other courts as any domestic IP.
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The JudgeCo Project
Principles:
14 Language: language determination by reference to
convenience and cost reduction, use of and documents in other
languages if no undue prejudice, ditto for production of orders.
15 Authentication: authentication (where necessary) by
secure and rapid means, save for good cause.
16 Communications between Courts:
(i) communication directly or via IPs: efficient and timely;
(ii) modern methods of communications, secure technology;
(iii) use of Guidelines and/or Protocols.
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Principles:
17 Independent Intermediary: courts to explore use of
independent intermediary to advance cooperation, if
intermediary skilled, fir and proper, impartial and accountable.
Costs from estate.
18 Notice: notice (incl. in public registers) to known foreign
creditors to permit proofs and participation.
19 Coordination: court approval for asset transactions
(unless protocol), prior approval of other IPs, multiple
appointments and periodic reporting encouraged.
20 Notice to Administrators: prompt notice to IPs.
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The JudgeCo Project
Principles:
21 Cross-Border Sales: maximum aggregate asset
value/highest overall value for creditors through cooperation.
22 Assistance to Reorganisation: secondaries run
consistently with any reorganisation objective in mains.
23 Post-Insolvency Financing: cooperation to obtain any
necessary financing.
24 Plan Binding on Participant: reorganisation plans in
mains if no secondaries) binding on all participants.
25 Plan Binding Personal Jurisdiction: ditto binding on
creditor with notice.
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