Towards a transnational model of bankruptcy law?


While the European insolvency laws have been considered country-specific regulations, entirely focused on national needs and expectations, it has gradually modified the approach to insolvency proceedings. Initially, it has directly imposed on the Member States some general rules in order to favor the coordination and cooperation between two or more cross-border insolvency proceedings. Recently, the approach is significantly changed. The E.U. Directive No. 1023 of 2019 establishes a new legal model of a restructuring plan for debtors in financial distress and requires the Member States to adequate their national laws to the model within the next years. Accordingly, European legislations are changing their rules on restructuring proceedings in accordance with the E.U. model. The change is extremely relevant because it promotes a crucial role for creditors in restructuring bankruptcy by providing that they are not only entitled to submit a plan on behalf of their debtor but also empowered to formulate a plan under which the debts can be paid in relation to the creditors’ financial conditions. When the E.U. law emphasizes the role played by creditors, it seems to reflect an innovative opinion in the recent American legal debate on bankruptcy. The New Creditors’ Bargain Theory suggests a broad understanding of the creditors’ power in determining and approving a restructuring plan under Chapter 11.