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EU JudgeCo Principle 6 - Equality of Arms

6.1. All judicial orders, decisions and judgments issued in an international insolvency case are subject to the principle of equality of arms, without any conditions, so that there should be no substantial disadvantage to a party concerned. Accordingly:

  1. Each party should have a full and fair opportunity to present evidence and legal arguments and each party shall receive reasonable time to do so;
  2. Each party should have a full and fair opportunity to comment on the evidence and legal arguments presented by other parties.

6.2. For the purpose of deciding a dispute, the court should inform the parties in advance concerning the facts for which the taking of evidence is required, the burden of proof, and also on the consequences of any failure of the evidentiary procedure.

6.3. Where the urgency of a situation calls for a court to issue an order, decision or judgment on an expedited basis, the court should so far as national law permits ensure:

  1. That reasonable notice, consistent with the urgency of the situation, is provided by the court or the parties to all parties who may be affected by the order, decision or judgment, including the major unsecured creditors, any affected secured creditors, and any relevant supervisory governmental authorities;
  2. That each party may seek to review or challenge the order, decision or judgment issued on an expedited basis as soon as reasonably practicable, based on local law;
  3. That any order, decision or judgment issued on an expedited basis is temporary and is limited to what the debtor or the insolvency practitioner reasonably requires in order to continue the operation of the business or to preserve the estate for a limited period, appropriate to the situation. Such order, decision or judgment will contain a ‘come back’ clause to allow objections to be heard on a timely basis. The court should then hold further proceedings to consider any appropriate additional relief for the debtor or the affected creditors, in accordance with Principle 6.1.

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