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
SUMMARY

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... (see full summary)

 
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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.

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