Mélanges - Mélanges en l'honneur de Jean-Luc Vallens - 1re - 420

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IMPROVING COURTS' PERFORMANCE IN THE EU

lacking ;15 whilst (vi) the awareness of the impact of international business or the
interests involved in a business rescue plan is not often fully understood.16
12. Recently, in June 2016, by the Nordic-Baltic Insolvency Network, the
following was held under section XI ("Administration of insolvency proceedings"), 13 and 14 :
"The court's qualifications and role in the management
13. Insolvency proceedings, as well as other cases and matters with strong
insolvency law implications, should be handled by insolvency courts, commercial
courts with special qualifications in the area of insolvency law, or by a division of
a court or certain judges who are specialised in or equipped with special qualifications in insolvency law.
14. If the qualification requirements in the previous section's conditions cannot be met, the insolvency law should not give the court a central or an active role
in the management of liquidation or reorganisation proceedings.17
13. Although not all these data are exhaustive and recent, they allow the general conclusion that understanding of business (including economic and financial)
matters and specialisation in insolvency law are up for improvement.
14. Looking at a general tableau of "courts" in the EU, in many civil law
countries insolvency cases are not dealt with by specialised courts (like the bankruptcy courts in the USA), but by a court that has general competence in civil
matters and disputes. These countries include Austria, Belgium, Czech Republic,
Estonia, France, Germany, Greece, Hungary, Italy, Latvia, the Netherlands, Poland,
Spain and Sweden. In some countries (supervisory) judges could be non-professional lay judges, such as in Belgium and France.18 Courts in all countries mentioned
15. In general on this subject : Sadler A., "Practice Obstacles in Cross-border Litigation
and Communication between (EU) Courts", www.erasmuslawreview.nl, 2012, Vol. 5, Issue 3 ;
Parker S. and Hood N., "Reform mania : why is the whole world upgrading its insolvency
regimes ?", Parts 1-3, 9 Corporate Rescue and Insolvency 2016, n° 1, 2 and 3, 18, 62, and 107
respectively : "In many countries judicial capacity, expertise and experience is severely
restricted." Insufficient mastering of legal English was one of the key outcomes of a selfassessment of 66 judges from 22 EU Member States, see Boon G.-J. and al., Grensoverschrijdende
rechterlijke samenwerking in insolventies, Nederlands Juristenblad 2016/199. Some of these
judges were critical on the use of sworn translators, for reasons of money, speed and the
experience that not all translators can stick to an objective questioning.
16. Wessels B. (ed.), "EU Cross-border Insolvency Court-to-Court Cooperation
Principles, European and International Insolvency Law Studies 1", 2015, The Hague, Eleven
International Publishing, p. 24. I note here that Jean-Luc Vallens participated in the study that
resulted in this report. Note furthermore that several respondents also criticized the quality of
persons acting in a role as insolvency office holder, their understanding of the Insolvency
Regulation, their lack of expertise and their awareness of the importance in cross-border
insolvency cases to deal with foreign insolvency office holders and/or courts.
17. See Nordic-Baltic Insolvency Network, Nordic-Baltic Recommendations on Insolvency
Law, available at https ://bankforeningen-public.sharepoint.com/Documents/1606%20
Insolvency%20law.pdf. This Network includes Sweden, Finland, Estonia, Latvia and Lithuania
as well as Non-EU Member States Norway and Denmark.
18. This would be possible in the Netherlands (and occurred for supervisory judges in the
last century). Presently in the Netherlands only judges have a supervisory role.

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