From ‘Prisoner's Dilemma’ to Reluctance to Use Judicial Discretion: The Enemies of Cooperation in European Cross‐Border Cases

Abstract

AbstractThis article will focus on Articles 41–44 of the Recast European Insolvency Regulation (Regulation 2015/848) and the dynamic of cooperation and communication between courts and insolvency practitioners. Two main ideas will be maintained. The first is that cooperation requires a legal framework which is certain—otherwise, prescriptions imposing duties of cooperation and communication might produce ‘prisoner's dilemmas’ and, paradoxically, unwillingness to cooperate. The second idea is that prescriptions imposing duties of cooperation and communication have an intrinsic open texture—this characteristic ontologically requires courts and insolvency practitioners to make choices between different rulings and activities. These findings imply that while interventions, both at European level and at national level, aiming at making the legal framework more certain are always welcome, interventions aiming at better specifying contents and extension of duties of cooperation and communication could be to a certain extent useless and even counterproductive. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.