Publication details
Harmonisation of the Directors’ Duty to Initiate Insolvency Proceedings?
| Authors | |
|---|---|
| Year of publication | 2024 |
| Type | Article in Proceedings |
| Conference | The Perpetual Renewal of European Insolvency Law |
| MU Faculty or unit | |
| Citation | |
| Web | Elektronická verze je dostupná pouze pro členy INSOL Europe. |
| Keywords | Insolvency law; harmonisation; director´s duties; openning of insolvency proceedings |
| Description | The harmonisation of substantive insolvency law is an ongoing challenge that has been approached from different angles. The diversity of national jurisdictions and insolvency philosophies, combined with the sensitivity of the issue, has long made it difficult to achieve success in this area. Over time, it has become clear that the convergence of legal systems will be a gradual process, limited to selected areas, rather than the creation of a comprehensive legal framework. Following Directive 2019/1023 on preventive restructuring frameworks (PRD 2019), harmonisation efforts have led to the introduction of a proposal for a Directive of the European Parliament and of the Council harmonising certain aspects of insolvency law. One of the areas addressed by this proposal relates to the duties and liabilities of directors in the zone of insolvency. Although this area has often been identified as suitable for harmonisation, the strategy adopted in the proposal raises a number of questions. Firstly, this paper seeks to identify the main controversies surrounding the current form of the proposed legislation on directors' duties. Secondly, it critically analyses the problematic aspects, in particular with regard to the objectives and harmonisation strategy announced by the Commission. In order to provide a comprehensive perspective, the paper examines the consistency of the proposal with the principles underpinning the PRD 2019. These considerations are made from a comparative perspective. Finally, the paper focuses on whether the harmonisation of the obligation to open insolvency proceedings, as proposed in the analysed draft, is desirable and will achieve the expected degree of harmonisation. |