This section has analysed whether the full harmonisation of insolvency laws of Member States of the EU could achieve legal certainty in dealing with international insolvencies of MCGs. Granted that harmonisation has its merits, which include the mitigation of differences between domestic laws, predictability and certainty regarding the jurisdiction and applicable law, the analysis revealed that this may be difficult to achieve in practice. This is because the process of getting legislators of Member States to amend their laws and to bring them into conformity with changes may be a difficult task. The recent revision carried out by the Commission, the EU Council and Parliament, which culminated in the adoption of the new EIR 2015, is a clear example of the length of time and legislative debates before an already existing Regulation could be amended. Chapter 4 will demonstrate how far-reaching a solution the new EIR Recast 2015 has proposed for the problem of abusive forum shopping resulting from the lack of legal certainty in cross-border insolvencies of MCGs. Until then, could the harmonisation of selected issues of Member States’ insolvency legislation be considered as a possible solution? The analysis in the next subsection will provide some guidance in this regard.
(B) Harmonisation of Selected Insolvency Topics
The analysis from the previous section suggests that full harmonisation of the insolvency rules in EU Member States might not be achievable due to a number of reasons. Therefore, it might be better to harmonise some substantive insolvency rules that are similar in most Member States, such as those in the areas of creditor action ranking and priority rules, as well as the coordination of proceedings involving corporate groups so as to avoid extreme disparities in the future.120
120 David Marks, ‘EC Insolvency Regulation: Is it Reform Time?’ (2012) 9 International Corporate Rescue 227; INSOL Europe, ‘Harmonisation of Insolvency Law at EU Level’ (Note of European Parliament , April 2010),
<http://www.europarl.europa.eu/meetdocs/2009_2014/documents/empl/dv/empl_study_insolvencyproceedings_ /empl_study_insolvencyproceedings_en.pdf> accessed 31May 2016; see also Paul Omar, ‘Upstreaming Rescue:
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As Tollenaar pointed out, a harmonised sale of assets rule is impossible because there are several European jurisdictions (at least in the Netherlands, the United Kingdom, Belgium and, to a large extent, Germany) which permit a quick sale of assets to be concluded.121
Nevertheless, other Member States do not have specific rules regarding the quick sale of assets, so it would be problematic to harmonise this rule. It can be argued that Member States that do not have rules for the quick sale of assets may not reject this rule, as they only need to develop a similar rule in their national laws.
It appears that there are substantial differences in the insolvency laws of Member States in certain areas, such as security rights and classes of creditors, and this makes both full and selected harmonisation extremely difficult. Thus, the answer to the question of whether the harmonisation of substantive insolvency laws at the EU level is necessary or useful in addressing the problem of the insolvency of MCGs may have been answered in the new EIR. However, currently, and as will be revealed in the analysis of the new EIR, there appears to be no solution, because the actual implementation of the EIR in cases of the insolvency of MCGs manifests the difficulty of attaining legal certainty. Underpinning this dilemma is the assertion by Tuleasca that introducing an instrument that has no mandatory nature may improve the consistency of the European Union law as concerns insolvency issues, but practical implementation remains a challenge.122 While harmonisation of the insolvency laws in the EU is found to have merits in its application, it has some shortcomings in terms of lacking certainty and not protecting the interests of creditors. Thus, it is crucial to examine whether party autonomy could help in dealing with the insolvency of MCGs. This examination is the focus of the next section.
Pre–Insolvency Proceedings and the European Insolvency Regulation’ (2014) 25 International Company and Commercial Law Review 19; John Lowry, ‘The Harmonisation of Bankruptcy Law in Europe the Role of the Council of Europe’ (1985) 16 Journal of Business Law 73.
121Tollenaar (n 118) 252.
122Luminita Tuleasca, ‘The Harmonization of the European Laws on Insolvency’ (2011) 1 Lex Et Scientia Juridical Series 144, 158.
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