Recognition of Debt Restructuring and Resolution Measures under the European Union Regulatory Framework

Abstract

Under the proposed Bank Recovery and Resolution Directive, member states will be required to provide for bail-in powers to restructure failing financial institutions. At this moment, the Dutch, French, UK and German legislator already provide public authorities with resolution powers. In order to be effective in debt restructuring of failing (non-)financial institutions, the measures taken by the resolution authorities need to be enforceable (before all courts) and effective in the entire European Union. Given the fact that not all the firm’s debt is issued in the home jurisdiction, the question of recognition is critically important. In regard of non-financial firms, the Dutch, UK, French and German jurisdictions provide for court proceedings to impose a collective settlement reached by the debtor and the majority of its creditors binding on the opposing minority. Outof-insolvency plans approved by the court are recognised under the Brussels I Regulation. If the European Union Commission’s Insolvency Regulation reform proposal is adopted, these court-approved debt restructuring plans in insolvency situations will be subject to the recognition regime of this regulation. Credit institutions, insurance undertakings, investment undertakings holding funds or securities for third parties and collective investment undertakings are excluded from the scope of the Insolvency Regulation whereas the scope of application of the Reorganisation and Winding Up Directive is limited to credit institutions. The regime under the future Bank Recovery and Resolution Directive and the Single Resolution Mechanism is limited to credit institutions. National (private international) law determines the recognition of resolution measures taken by the authorities of another member state.