The course in International Corporate Insolvency Law aims to give students insight in the theory and practice of corporate insolvency law in a transnational and comparative context. The importance of studying corporate 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 experienced on a global scale the last decade – 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. An insolvency proceeding puts to the test the claims that these creditors have on a business, be it on grounds of a charge or other secured right or on grounds of contract or tort. 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 judge does one turn to? How do different jurisdictions deal with specific forms of security? Are there ways in which a (more) secure position can be achieved before the risk of insolvency materializes? In order to gain insight in the workings of insolvency in modern society, therefore, this context requires that corporate 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.
Recent results of cross-border collaboration will be dealt with on a general, introductory level, with practical case studies, for instance the EU Insolvency Regulation, that came into force May 2002, and its recast which is effective as of 26 June, 2017 and the proposal for EU Directive on Insolvency, Restructuring and Second Chance of 22 November 2016. See also the United Nations Committee on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency of 1997 and its enactment in several countries around the world, including the USA (2005) and the UK (2006), the World Bank’s Principles for Effective Insolvency and Creditor/Debtor Regimes (2011), the American Law Institute/International Insolvency Institute’s Global Principles for Cooperation in International Insolvency Cases (2012) and the EU Cross-Border Insolvency Court-to-Court Cooperation Principles and Guidelines (draft 2014).
Court cases, applying the EU Insolvency Regulation, mainly are from the UK, Germany, France, Italy, Belgium, the Netherlands and the European Court of Justice. Some cases beyond the EU include insolvency cases concerning the Russian oil giant Yukos Oil and the bankruptcy of Lehman Brothers.
Objectives of the course
The purpose of the course will be to offer to students a theoretical and practical outline of international or cross-border aspects of rescue or insolvency of corporations.
By the end of the programme (5 ECTS) a student should have a good, general insight into the major issues, theories and debates regarding legal topics in international insolvency. Furthermore, the participant should have gained general analytical, problem-solving and practical skills to apply international insolvency rules in practice.
The student will have gained capacities in:
information seeking, evaluation and retrieval;
intercultural sensitivity and understanding;
oral and written communication skills;
planning and managing his/her time.
The student should be able to demonstrate a critical and independent view when confronted with legal issues in international corporate insolvency, and to reach his or her own conclusions.
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 and the EU Insolvency Regulation 2000/1346 and its recast 2015/848. S/he will have obtained basic knowledge of principles of private international law in the context of international corporate insolvency and will have received an insight in corporate insolvency law from a civil law perspective with respect to various topics, such as director’s liability, secured creditors.
The specific goals of the course are:
1. To introduce legal concepts and reasoning in the subject area, including the introduction to primary and secondary source materials;
2. To appraise international legislative initiatives and chosen approaches to cross-border issues and the roles of parties involved;
3. To acquaint students with general policy issues behind (international) corporate insolvency legislation;
4. To enable to recognise specific roles and tasks in given international corporate insolvency proceedings, e.g. the aim of the proceeding, the role of office holders and courts, and the position of (secured) creditors;
5. To understand, interpret and apply recent (draft-)legislation and regulation dealing with cross-border insolvency to given cases;
6. To introduce the nature of the skills which are necessary to apply aforementioned legislation and regulation to make international corporate insolvency law work in practice.
The timetable of this course can be found in uSis.
Mode of instruction
Number of classes (150-180 minutes) : 10
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.
The general approach during classes is a presentation by the lecturer with illustrations and cases to stimulate discussion. The course takes 140 hours (6 hrs general overhead; 44 hrs (preparing for) classes, assignments, exam; 90 hrs for study of literature).
Seminar attendance is compulsory, students may miss up to one class. Students can only attend the seminar if they submit in advance their written answers to the exercises through blackboard.
To complete this course, the following assessment(s) must be completed:
1. Preparation of cases in advance
During the seminars several cases will be discussed. Preparation and submission of these cases in advance (each with a maximum of approximately 500 words) will assist the student in getting his grade. The responses to the case study should be submitted by mail to email@example.com. As part of the final examination students are required to submit a written hypothetical case assignment. The grade for this case note will count for 20% towards the final grade.
2. Written examination
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 re-sit. Depending on the number of students failing the exam, the resit may take the form of an oral exam.
The 20% hypothetical case assignment will remain valid for the resit. The case note itself cannot be retaken.
If a student has not passed the course by the end of the academic year, partial grades for written exam, case note or paper are no longer valid.
Regulation retake passed exams
In this course it is possible to retake an exam that has been passed (cf. art. 188.8.131.52 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
Cases related to Chapter 15 U.S. Bankruptcy Code: www.chapter15.com
For cases of other courts about cross-border insolvency: http://globalinsolvency.com
For general sources, see the links provided by www.bobwessels.nl and www.iiiglobal.org.
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/
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.