Statutory priorities in the new Nordic restructuring laws

Abstract

The Report addresses priorities of stakeholders in the new Nordic restructuring laws, after implementation of the Restructuring Directive (EU) 2019/1023. It provides an in-depth pan-Nordic comparison, essentially from the perspective of debt capital markets. The rules relating to priorities of stakeholders in restructuring do not only differ on an international level, but also among the Nordic countries.

The Report covers statutory priorities in an international context. It compares the US and the UK statutory laws and their notable variation, and thereafter it discusses the roadmap to harmonisation of key features of restructuring law on the EU level. Further, we discuss why some form of relativity may be important in relation to rules on priority in a restructuring context. Noting the academic discussion in the US and in Europe and recent case law developments from the UK, the report recognizes a tendency away from a strict absolute priority towards a certain degree of flexibility. We continue with an outline of the development of the current restructuring laws in Sweden, Denmark and Finland, including a comparison of key rules. The Report concludes with a summary of the topics covered and a discussion de lege ferenda (of future legal developments), outlining further possible options for developing the Nordic laws - or at least for understanding the consequences of retaining current forms of regulation.

The legal structures presented in the Report correlate both with corporate and insolvency law. Hence, benchmarks for the legislative options are introduced both from the corporate and insolvency law points of view. In addition to a required attention from the view of these two legal disciplines, one needs to address the expertise of and the architecture for the tribunal bench systems involved in the process.