12.1 Chapter 1: Problem statement and overview

The main objective of this book is to develop a normative foundation and highlevel framework for pre-insolvency proceedings. The thesis first revisits the normative foundation of insolvency proceedings in general and then, building on that, proposes a normative foundation for pre-insolvency proceedings. The book then goes on to discuss governance, more specifically, the system of voting in classes and the need to supplement this with judicial determination. After that, the important theme of valuation in the context of restructuring is discussed. The following section offers a comparative analysis of the American Chapter 11 plan procedure and the English scheme of arrangement. The purpose of this is to identify the strengths and weaknesses of these systems so that lessons can be drawn from them when designing a new procedure. Building on the previous parts, the book then develops a high-level framework for pre-insolvency proceedings. The final part assesses the recommendation of the European Commission on a new approach to business failure1 and the Dutch Draft Continuity of Enterprises Act II (Wet Continuïteit Ondernemingen II)2 . The recommendation of the European Commission encourages the Member States to introduce preinsolvency proceedings into their national systems. The Dutch Draft Continuity of Enterprises Act II aims to introduce pre-insolvency proceedings in the Netherlands.