Insolvency judges meet strategic behaviour: A comparative empirical study
| DOI | 10.1177/1023263X20906669 |
| Published date | 01 April 2020 |
| Author | Niccolo Abriani,Paula Fernando,Joanna Kruczalak – Jankowska,Catarina Frade,Ruben Hollemans,Gijs van Dijck,Ruben Jesus,Lucilla Galanti,Lorenzo Benedetti,Monika Maśnicka,Anna Machnikowska,Ilaria Pagni |
| Date | 01 April 2020 |
| Subject Matter | Articles |
Article
Insolvency judges meet
strategic behaviour:
A comparative empirical study
Gijs van Dijck* , Ruben Hollemans*, Monika Mas
´nicka**,
Catarina Frade***, Lorenzo Benedetti****, Lucilla Galanti ****,
Paula Fernando*** , Joanna Kruczalak – Jankowska**,
Niccolo Abriani****, Ruben Jesus***, Anna Machnikowska**,
and Ilaria Pagni****
Abstract
This article reports the results of a comparative empirical legal study that analyzed (1) strategic
behaviour by actors in insolvencies that is salient to insolvency judges and (2) how insolvency
judges respond to such behaviour. After examining four different European countries, namely Italy,
the Netherlands, Poland, and Portugal, the study reveals how differences regarding case allocation,
judge – insolvency practitioner (IP) interaction, and remuneration and case financing can result in
strategic behaviour on both the side of the judges and the IPs. From this, it follows that improving
the efficiency and effectiveness is not merely a matter of implementing legislation and case law, but
that it also requires a look into the dynamics between insolvency judges, IPs, and other actors in
the insolvency process.
Keywords
Insolvency, bankruptcy, comparative, empirical, judges, courts
1. Introduction
Insolvency judges commonly de cide on insolvency matters, which often inc lude, but are not
limited to, declaring and closing the insolvency, which court has jurisdiction over which matters
* Maastricht University, Netherlands
** University of Gdan
´sk, Poland
*** University of Coimbra, Portugal
**** University of Florence, Italy
Corresponding author:
Gijs van Dijck, Maastricht University, Bouillonstraat 1-3, Maastricht, 6200 MD, Netherlands.
E-mail: gijs.vandijck@maastrichtuniversity.nl
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(2) 158–177
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X20906669
maastrichtjournal.sagepub.com
MJ
MJ
(for example, center of main interests), or who has priority over who. Such decisions are often laid
down in case law, which is generally the object of study of legal scholars.
1
In addition, insolvency
judges are involved in a variety of activities that do not result in case law. Such activities include
approving a dismissal of employees and of the sale and transfer of assets, and determining the
remuneration of the insolvency practitioner (IP).
2
Although judges’ reasoning for some activities can be found in or inferred from case law,
research about how insolvency judges operate in activities that are not laid down in case law is
lacking, particularly empirical research. Moreover, the way in which insolvency judges operate
may differ among jurisdictions. As a result, it is unclear which behaviour and strategies insolvency
judges adopt with respect to their interaction with other actors in an insolvency procedure, whether
differences can be observed between or even within jurisdictions, and what causes the strategic
behaviour.
This article addresses this knowledge gap. It analyzes strategic behaviour by actors in insol-
vencies that is salient to insolvency judges and how they respond to such behaviour. It reports the
findings of a comparative empirical study that analyzed strategic behaviour judges are confronted
with, and how they respond to these types of behaviour. The ACURIA-project of which this article
is a part of, examined four different European countries, namely Italy, the Netherlands, Poland, and
Portugal. The analysis of strategic behaviour by insolvency actors in these jurisdictions, whose
insolvency regimes are dissimilar and distinguishable by their judicial cultures and institutional
environments with different economic, social, and political conditions, contributes to the under-
standing of what are effective, efficient, and optimal ways of judicial intervention in insolvency
procedures, and of how insolvency judges can impact the dynamics between the parties involved,
and the insolvency process as a whole.
A crucial element for what strategic behaviour becomes salient and how insolvency judges can
respond to this, is the institutional role insolvency judges play, and which powers are assigned to
them. Consequently, it is important to first explore the role and powers insolvency judges have in
the four countries (Section 2). The comparison is followed by an explanation of the methodology
of the empirical study that examined the strategic behaviour insolvency judges face and how they
respond to it (Section 3), and by the results of the study (Section 4). The conclusion discusses the
findings and its implications (Section 5).
1. A quick-scan at International Insolvency Review publications provides plenty of examples, see for instance: Z. Fabok,
‘Grounds for Refusal of Recognition of (Quasi-) Annex Judgements in the Recast European Insolvency Regulation’, 26
International Insolvency Review (2017), p. 295 (discussing recognition of judgments); C.Z. Qu, ‘The court’s power to
appoint provisional liquidators to carry out rescue roles: Rethinking Legend’, 28 International Insolvency Review
(2019), p. 86 (courts’ power to appoint provisional liquidators); R. Mangano, ‘From ‘Prisoner’s Dilemma’ to Reluctance
to Use Judicial Discretion: The Enemies of Cooperation in European Cross-Border Cases’, 26 International Insolvency
Review (2017), p. 314 (the role of courts in cross-border insolvencies); A. Godwin, T. Howse and I. Ramsay, ‘The
Inherent Power of Common Law Courts to Provide Assistance in Cross-Border Insolvencies: From Comity to Com-
plexity’, 26 International Insolvency Review (2017), p. 5 (same); R.B. Chapman, ‘Judicial abstention in cross-border
insolvency proceedings: Recent protocols in simultaneous plenary cases’, 7 International Insolvency Review (2007), p. 1
(same).
2. E.g. J. Dickfos, ‘The Costs and Benefits of Regulating the Market for Corporate Insolvency Practitioner Remuneration’,
25 International Insolvency Review (2016), p. 56. Other terms commonly used to describe the insolvency practitioner are
‘bankruptcy trustee’ or ‘liquidator’. Because such terms can have different meanings in different countries, we use the
more neutral term ‘insolvency practitioner (IP)’ throughout this article.
van Dijck et al. 159
To continue reading
Request your trial