Insolvency - Evolutions And Perspectives Of Legislative Reform At National, European And International Level

• Author: Ionel Didea, Diana Maria Ilie
• Position: Faculty of Economics and Law, University of Pitesti; Faculty of Law - Doctoral School, Titu Maiorescu University, Bucharest, Romania/Doctoral School - Law Field, Titu Maiorescu University, Bucharest, Romania
• Pages: 230-244

INSOLVENCY - EVOLUTIONS AND PERSPECTIVES OF LEGISLATIVE

REFORM AT NATIONAL, EUROPEAN AND INTERNATIONAL LEVEL

Professor Ionel DIDEA1

PhD. student Diana Maria ILIE2

Abstract

At the national level, we can really invoke the passage of a road to maturity of the insolvency legislation,

especially the Law no. 85/2014, which was intended to be a legislative reform, with major impact in terms of increasing

the percentage of the number of companies that have a second chance, on the one hand, but also on reducing the stigma

of insolvency, on the other hand. We wonder if after 5 years of imp lementation this has been achieved, whether it is a

problem of our culture or a problem of certain legislative gaps or administrative impediments. How can we maintain a

balance b etween the culture of a state, which hardly changes over time, and an almost perfect institution, but at the

same time difficult to implement? Why is the rate of successful reorganizations still low? When do we manage to have

control of a modern insolvency legislation, if we slow down progress or return in time through a simple emergency

ordinance, such as the one in 2018? How do we implement at national level the new European D irective, recently

entered into force, which aims to develop a “rescue culture” for the insolvent debtor, a direction that at national level

we have abandoned? How do we manage to evolve and thus fit into the perspectives for legislation evoked at

international level, inten sely promoted by UNCITRAL, or at least to maintain the appearance of legislation adapted to

the new guidelines inevitably impregnated by globalization? It is interesting to analyze the essence of a critical question

in the specialized literature3: “Does the imperfection of the legislation generate mistrust or does mistrust generate

imperfect results of almost perfect legislation?” It is ultimately a balanced harmonization between culture and

legislation, between legislative a nd administrative, between a spirations and eco nomic, political a nd social

developments, between domestic law and international law, between rights and interests.

Keywords: insolvency, international perspective, European perspective, a new EU Directive, nationa l

legislative reform, INSOL Europe, INSOL International.

JEL Classification: K22, K23, K33, K35

1. International perspective - new implementation guides in the field of insolvency

developed under the aegis of UNCITRAL. SINGAPORE, AUSTRALIA and HONG KONG -

some examples of good practices, cases and solutions in reconfiguring insolvency law through

the INSOL International filter

Through a somewhat abrupt approach and considering an extension of the article published

in March 2019 in the Legal Tribune4, we are going to analyze and debate exclusively the aspects of

legislative, jurisprudential and case law novelty, in the idea that we need an urgent view on the

legislative future of insolvency law in the context of the latter predictions about the onset of a new

global economic crisis with a much greater destabilization potential than the previous crisis.

We think it is advisable to evoke as a priority an international topical image on the field of

insolvency, in the sense that we aim to narrow the scope of analysis during the research, at

European level, respectively at national level, in order to identify and extract the best practices and

solutions of law that can reform domestic customs and law.

The phenomenon of insolvency continues to enjoy intense concern in terms of international

legislation5, as UNCITRAL Working Group V (United Nations Commission on International Trade

1 Ionel Didea - Faculty of Economics and Law, University of Pitesti; Faculty of Law - Doctoral S chool, Titu Maiorescu University,

Bucharest, Romania, prof.didea@yahoo.com.

2 Diana Maria Ilie - Doctoral School – Law Field, Titu Maiorescu University, Bucharest, Romania, dianamaria.ilie@yahoo.com.

3 Vasile Godîncă-Herlea, Law no. 85/2014, a road to maturity, „Phoenix Magazine” no. 65/2018 (July-September 2018), p. 20-24.

4 Ionel Didea, Diana Maria Ilie, (R)evolution o f the insolvency law in a globalized economy, ,,Juridical Tribun e - Tribuna Juridică”,

vol 9, issue 1, 2019, pp. 91-112.

5 For development on the legislative contribution in the field of insolvency in recent years at international and European level, see

Ionel Didea and Diana Maria Ilie, op.cit., especially section 3. New Union and international “coordinates” in the outlining of the

insolvency regime, which may represent a preamble to the present study.