Cooperation and communication obligations

Cooperation and communication obligations

The European Insolvency Regulation contains obligations for insolvency practitioners and courts to cooperate and communicate. This article shows that these obligations are to be widely interpreted. The European legislature intended to mitigate the inherent inefficiency of having parallel insolvency proceedings taking place at the same time. The malady is inefficiency, the cure is cooperation. According to the European legislature, cooperation did not take place often enough before the enactment of the EIR Recast. Therefore, it created real hard law obligations. These obligations do not merely encourage insolvency practitioners and courts to cooperate, they force them to do so. Arguing that insolvency practitioners and courts may refuse to cooperate unless their insolvency proceedings are compensated, or receive a fair share of the cooperation surplus, goes against the purpose of the European legislature. This article shows that Kaldor-Hicks efficiency provides a suitable way to interpret the obligations and limitations: if a certain act of cooperation leads to more total benefits than total costs for the combined insolvency proceedings, this contributes to attaining an efficient outcome. Therefore, insolvency practitioners and courts should also cooperate if this leads to more costs than benefits in their own insolvency proceedings.