Saab Automobile, Lehman Brothers, Air Berlin, Alitalia, Toys ‘R’ Us, Hanjin Shipping, Enron, Kodak, RadioShack – all these business either went through insolvency proceedings or are undergoing such proceedings at this very moment. Some of them managed to reinvent itself and survive financial difficulties, while others have become a part of history. What is common for all such businesses is their international character.
The International Corporate Insolvency Law course aims to give students an introductory insight in the theory and practice of insolvency law in a transnational and comparative context. The importance of studying insolvency in an international context has increased significantly over the past decades, with globalization of business turning insolvency into an international affair. Especially in times of economic recession or of crisis – as we are currently experiencing on a global scale – an increase of business failures can be observed in which cross-border elements crop up. Many creditors as well as assets of a company are nowadays located in different jurisdictions. The international setting in which such creditors operate has added complexity to the way in which they can make their claims effective. Questions that they may encounter include, for example:
Which court has jurisdiction to open insolvency proceedings?
What is the applicable law?
Will the insolvency judgment be recognized in other countries?
In order to gain insight in the workings of insolvency in modern society, therefore, this context requires that insolvency law be studied from an international perspective.
The International Corporate Insolvency Law course focuses on the concept of corporate insolvency (reorganisation, work-out, winding-up, bankruptcy) and the ways in which corporate insolvency is regulated by legislation or by other means of regulation, including instruments of soft law. Emphasis is placed on insolvency law in corporate practice and the effectiveness of mechanisms for dealing with cross-border rescue or insolvency on a global scale, with an emphasis on the European Union.
In this course the emphasis is placed on insolvency law in corporate practice (consumer insolvency may be referred to briefly) and the effectiveness of mechanisms for dealing with cross-border rescue or liquidation on a global scale, with an emphasis on the European Union. Recent results of cross-border collaboration will be dealt with on a general level, with practical case studies, including the European Insolvency Regulation (EIR) Recast, which has become effective as from 26 June 2017, the UNCITRAL Model Law on Cross-Border Insolvency of 1997, the World Bank’s Principles for Effective Insolvency and Creditor/Debtor Regimes (revised in 2015). A separate stream of documents includes those related to cooperation and communication in insolvency cases, e.g. the EU Cross-Border Insolvency Court-to-Court Cooperation Principles and Guidelines (2014) and Judicial Insolvency Network (GIN) Guidelines (2016). Court cases, applying the EIR (Recast) will be analyzed and used for practical case studies. Some cases beyond the EU (e.g. Yukos Oil and Lehman Brothers) will be referred to as well.
The course will not be limited to the analysis of formal insolvency liquidation proceedings – it will also cover proceedings aimed at rescuing the business while it is still solvent, but experiences financial (liquidity) shortages. This will include discussions about the newly introduced EC Proposal for a Directive on Insolvency, Restructuring and Second Chance (COM(2016) 723 final).
The purpose of the course is to offer to students a theoretical and practical outline of international or cross-border aspects of rescue and insolvency of companies.
Special Knowledge. By the end of the program a student should have a good, general insight into the major issues, theories and debates regarding legal topics in (international) insolvency law. A student who has successfully completed the subject should further have become familiar with the structure and principles of UNCITRAL Model Law on Cross-border Insolvency, EIR (Recast), EC Proposal for a Directive on Insolvency, Restructuring and Second Chance (COM(2016) 723 final) and other relevant documents referred to in the course. S/he will have knowledge of substantive principles of insolvency law and private international law in the context of international corporate insolvency and will have an insight in insolvency law from a civil law perspective with respect to various topics, such as directors’ liability and disqualification, avoidance actions, ranking of claims and order of priorities.
Research abilities. A student will gain capacities in information seeking, its evaluation and retrieval. Besides, general analytical, problem-solving and practical skills will be developed and tested during the course. A student should be able to demonstrate a critical and independent view when confronted with legal issues in international insolvency, and to reach his or her own conclusions.
Presentation of knowledge. A student should be able to understand, interpret and apply recent (draft-)legislation and regulation dealing with cross-border insolvency and restructuring to a given case and present his/her findings in a clear, readily understandable, methodical and logical manner both orally and in writing.
Application of knowledge. A student will be able to apply the knowledge acquired at the course and use his/her problem solving and analytical skills to a specific real or hypothetical situation, involving a given cross-border insolvency situation.
The timetable of this course can be found in uSis.
Mode of instruction
In the 7-week course, you will be offered 7 lectures and 7 seminars of two hours each. During the lectures, you will get acquainted with various important aspects of international corporate insolvency law. During the seminars, each of you will make a presentation on a given topic that will be posted on Blackboard or sent individually via email. Please note that topics for presentations will be distributed approx. 1 week before the respective presentations. Students are expected to actively participate in the lectures and seminars throughout the entire course. It is therefore necessary to study the required literature beforehand. A student’s individual presentation will eventually count for 20% of the final grade
Name of lecturer: Prof.mr. R.D. Vriesendorp.
Required preparation by students: Students are expected to read assigned literature in advance for each class meeting and they are expected to attend all classes. Students should download and read the accompanying court cases themselves.
Seminar attendance is compulsory, students may miss up to one seminar, provided it is not a seminar in which they are expected to make a presentation.
In addition to discussing questions, each seminar starting from Seminar 2 will include individual oral presentations made by students in English. Seminar 1 will (partially) be devoted to improving presentation skills and learning how to make better presentations in Power Point. This will help students make presentations more professional, while polishing their public speaking abilities. This will also indicate how (based on which assessment criteria) students’ presentations will be graded.
Presentations should be maximum of 10 minutes in length, which does not include the ensuing discussion. For your presentations, you are required to use PowerPoint or Prezi. Each oral presentation highlights a specific aspect of international corporate insolvency law as featured in the required reading. It is highly recommended to expand your research also to sources external to the required reading. Thus, oral presentations serve as an introduction to (legal) research. It develops research abilities, necessary for success of a modern lawyer.
Oral presentations will be graded individually and will count for 20% of the final course grade. Oral presentations will be assessed on both presentation skills and content, including performance, use of (legal) sources, time management, use of PowerPoint/Prezi and quality and structure of argumentation. As noted above, some useful tips will be given at the first seminar.
Please note that the course cannot be regarded as complete until a student makes an oral presentation in accordance with the prescribed schedule and on the topic assigned.
2. Written exam
The areas to be tested within the exam at the end of this course are the materials mentioned in the ‘Required readings’ section, including the subjects taught during the class sessions and all other instruction that is part of the course. This exam will be in writing. The exam grade will count towards 80% of the overall mark in this course. Students who fail the exam are entitled to a resit. Depending on the number of students failing the exam, the resit may take the form of an oral exam.
The 20% earned from the presentation will remain valid for the resit. If a student has not passed the course by the end of the academic year, partial grades for written exam and presentation shall be no longer valid.
Regulation retake passed exams
In this course it is possible to retake an exam that has been passed (cf. art. 220.127.116.11 and further of the Course and Examination Regulations), on the condition that this course is included in the compulsory components of the degree programme. Students who have passed the exam may retake the final written assessment (test) of the course. Please contact the Student Administration Office (OIC) for more information.
More information on this course is offered in Blackboard.
Obligatory course materials
Reading materials and sources:
To be determined (will be published on Blackboard
For cases of the Court of Justice of the European Union: http://curia.europa.eu
For current Leiden Law School Turnaround, Rescue and Insolvency research, see www.tri-leiden.eu.
Students may wish to follow Professor Bob Wessels’ blog, see http://bobwessels.nl/blog/, as well as: http://blogs.law.harvard.edu/bankruptcyroundtable/ and Corporate Finance Lab
Unless indicated otherwise, reading materials should be accessed via Internet.
Summaries of some of the classes, either Power Point presentations, copies of materials or otherwise, will be available prior to or after the class sessions.
Students have to register for courses and exams through uSis.
Co-ordinator: mr. I. Kokorin L.L.M.
Work address: Kamerlingh Onnes Building Steenschuur 25 2311 SE Leiden
Contact information: see below
Telephone number: 071-527 7262
Institute: Private law
Department: Company law
Room number secretary: B243
Opening hours: 9.00-13.30 hours
Telephone number secretary: 071-527 7235
Belangstellenden die deze cursus in het kader van contractonderwijs willen volgen (met tentamen), kunnen meer informatie vinden over kosten, inschrijving, voorwaarden, etc. op de website van Juridisch PAO. Let op dat er wel voldaan moet worden aan de toegangseisen.