The Role, Functions and Duties of Insolvency Practitioner in Restructuring Proceedings

Abstract

This master's thesis examined the role and functions of insolvency practitioners in preventive restructuring proceedings under EU law, focusing on the tension between the debtor-in-possession principle in Restructuring Directive and the varying approaches taken by the EU Member States in practice. Through a comparative analysis of the US, Germany, and Ukraine, the research found that the insolvency practitioner is not a single clearly defined role but a flexible legal concept covering a wide range of functions, from passive facilitation to active co-management, whose exact scope is left to national law, producing significantly different outcomes across jurisdictions. The research found that the main issue is not if practitioners should be involved in restructuring, but rather when, how, and under what conditions. A key legislative problem is that the Restructuring Directive is still unclear about whether appointing a practitioner under Article 5 should be mandatory or optional. This lack of clarity has led some Member States to require practitioners in all cases, which may go against the Directive’s main goals and could prevent struggling but viable businesses from getting early access to restructuring.