Introduction - The Irish Perspective on Restructuring
For the past 30 years, Ireland has had one of Europe’s most robust restructuring frameworks, namely the examinership process. Borrowing quite heavily from Chapter 11 of Title XI of the United States Code, it is thought that examinership was introduced, at least in part, to attract and retain foreign direct investment from the US. In addition, Ireland also has a Scheme of Arrangement framework, which is almost identical to the Scheme of Arrangement in the United Kingdom. During the last recession, examinership was by far the favoured process for reasons relating to lower threshold of approvals required within classes and expressly described cross class cram down procedures. The examinership process is included in Annex A of the EIR Recast 848/2015. Its goal is to enable the company to successfully restructure and return to viability. The protection of employment was a stated policy goal of the process, although not the only goal. The legislative framework allows for the courts to engage in a balancing exercise to ensure fairness and avoid unfair prejudice. The effect that Brexit will have is uncertain, but it may result in Ireland becoming a home for restructuring, in view of its framework for the Scheme of Arrangement, which is not covered by the EIR Recast and the examinership procedure, which is.