Social Policy and the Reform of the Insolvency Regulation

Social policy is a concept that is often left on the side-lines of insolvency law, and often for good reason. However, ignoring this inconvenient aspect of today's legal culture inhibits a broader perspective when considering how insolvency law and more particularly business rescue will be effective in the various European jurisdictions, particularly when crossed with the requirements of employee protection legislation. While such a matter is not strictly the prevue of EU insolvency law, there are practical matters affecting how a pan European rescue culture can function with the greatest efficiency where the conflicting goals of business rescue and employment protection are not recognised and to some extent, managed. The proposals for reform of the EU Insolvency Regulation leave the question of how employee rights are governed solely under the law of the Member State. This includes the laws governing the transfer of employee contracts when a business is transferred out of insolvency. As one of the primary focuses of the reforms of the EU Insolvency Regulation is the reduction of forum shopping for insolvency procedures, the inequality between employment regimes should merit some consideration from a practical point of view. The aim of this paper is to discuss how employee acquired rights and business rescue interact in England and France with a particular emphasis on how they function within the proposed reforms to the European Insolvency Regulation