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Court-to-Court Communications - General Information
Since March 1, 2012, the German insolvency judges are authorized by statute (see left column) to cooperate with foreign insolvency/bankruptcy courts. Before that date, many German insolvency judges did not consider themselves authorized to do so. Communications with courts from foreign countries are not as much a tradition in Germany as they are in common law countries. Communications between judges from different common law jurisdictions lack one problem the countries in Continental Europe are encountering: the language barrier. This may explain the different traditions. A good analysis of the situation in Germany can be found in the article cited below: Original German version: Busch, Remmert, Rüntz, Vallender: Kommunikation zwischen Gerichten in grenzüberschreitenden Insolvenzen - Was geht und was nicht geht, NZI 2010, 417. English translation by Eberhard Nietzer: Communications Between Courts in Cross-Border Insolvencies: What Does Work and What Does Not, Norton Annual Review of International Insolvency, Article No. 5, (2012 Edition) (reprinted with permission).
The differences between the civil law approach and the common law approach towards court-to-court communications became very clear during a meeting of judges from Germany with members of the International Insolvency Institute's Judicial Committee. If you are interested in more information about the International Insolvency Institute, please click the link in the navigation bar which takes you to the International Insolvency Institute's homepage. The discussion showed that the German judges took a very skeptical approach because they were not sure if such cooperation or even communication was permitted under the law in effect at that time. On the basis of their understanding of the applicable law, the German judges argued that they are only authorized to do what they are explicitly permitted to do by statutory law. The judges from common law countries proceeded on the assumption that they are authorized to do what they are not explicitly prohibited to do. A great difference between German and American procedural law is that American judges can design local rules and, thus, procedural rules of their own which is unthinkable for a German judge. Therefore, many German judges do not think they can enter into procedural agreements such as protocols. They may even be afraid of exposing themselves to potential personal liabilty risks if something goes wrong.
The importance of court-to-court communications has also been acknowledged on the level of EU-legislation. Articles 41 - 44 of the new REGULATION (EU) 2015/848 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 May 2015 on insolvency proceedings (recast) include provisions on communications between courts and on communications between courts and insolvency practitioners. These articles can be downloaded by clicking the link in the left column. The former version of the European Insolvency Regulation (EIR) did not include any provision on coooperation to be performed by courts. Cooperation between courts has also become the subject of a national German statutory provision relating to the insolvencies of enterprise groups. The new section 269b which is applicable as of April 21, 2018 (see left column for English translation) has been included into the German Insolvency Code by the Act on the Facilitation of the Management of Insolvencies of Enterprise Groups. It provides that courts are to cooperate if insolvency proceedings against debtors affiliated to the group are pending in different courts. It is worth mentioning that section 348 subsection 2 of the Geman Insolvency Code allows judges to communicate with other judges, whereas the above mentioned articles of the EIR and section 269b of the German Insolvency Code direct the courts to cooperate.
Court-to-Court Communications - Information on an International Project
An extensive manual with suggestions on how to proceed in cross border cases has been published jointly by the American Law Institute (ALI) and the International Insolvency Institute (III) in March of 2012 under the title "Transnational Insolcency: Global Principles for Cooperation in International Insolvency Cases" So far, the Global Principles have been published in English and in German (RIW 2014, 194-211). You can download the English version by clicking the link in the left column.