This thesis focuses primarily on the field of European cross-border insolvency law, currently represented by the EU Regulation on Insolvency Proceedings (EC No 1346/2000). The EU Regulation considered theoretical conflict between advocates of universalism and territorialism, and is generally regarded as reflecting it in a way of modification, which is represented by distinction between main and ancillary insolvency proceedings. Determination of international jurisdiction in the main insolvency proceedings is inherently linked with the criteria of the centre of main interests (COMI), which serves as a specific connecting factor to constitute both the court with jurisdiction and applicable law, for the purpose of the whole insolvency process in accordance with the principle lex fori concursus. The COMI concept is the root of the jurisdiction trouble, thus this thesis aims at providing substantial information on the concept, since the EU Regulation neglects its proper introduction. One of many issues related to COMI conception is a phenomenon of forum shopping, term used to describe situations when debtors manipulate with facts relevant for establishing jurisdiction, in order to obtain more favourable position, usually at creditors' expense. The thesis also deals with another important initiative in...

Le règlement n°2015/848 est-il applicable aux procédures d’insolvabilité présentant un lien avec un État tiers comme la Suisse ? D’un côté, la CJUE répond par l’affirmative concernant le principe vis attractiva concursus. D’un autre côté toutefois, le règlement n°2015/848, plus encore que le règlement n°1346/2000, a été conçu par le législateur européen pour les situations intra-européennes. La décision Schmid (CJUE, 16 janvier 2014, C-328/12) est une boîte de Pandore, car très peu de dispositions pourront en réalité être étendues à l’international. Le chapitre IV assure p. ex. l’égalité de traitement aux seuls créanciers étrangers européens.Comment les autorités suisses vont-elles réagir ? Le chapitre 11 de la LDIP suisse a récemment été révisé, afin de simplifier la reconnaissance des décisions étrangères de faillite. La réciprocité n’est plus requise, et un nouveau chef de compétence internationale indirecte a fait son apparition : le COMI du débiteur. De plus, la faillite ancillaire devient optionnelle. Cela étant, la protection des créanciers locaux reste la priorité : le juge suisse luttera toujours contre les discriminations subies par les créanciers locaux, et refusera la reconnaissance des décisions annexes rendues contre un défendeur domicilié en Suisse. L’applicabilité des règles européennes aux situations relatives aux États tiers serait par conséquent incohérente, et risquerait de paralyser l’entraide internationale avec la Suisse. / Is Regulation 2015/2018 applicable to insolvencies linked with third States such as Switzerland ? On the one hand, the CJEU extends the vis attractiva concursus principle beyond European borders. But on the other hand, Regulation 2015/848, even more than Regulation 1346/2000, is designed for intra-EU insolvencies. The Schmid decision (CJEU, 16th January 2014, C-328/12) is a Pandora’s box, because very few provisions may in fact be extended to extra-EU cases. Chapter IV e.g. focuses on the equal treatment of European foreign creditors. How are the Swiss authorities going to react ? Chapter 11 of the Swiss PILA has recently been modified, in order to simplify the recognition of foreign insolvency proceedings. Exit the requirement of reciprocity, and welcome to a new ground of international indirect jurisdiction : the COMI of the debtor. Moreover, the opening of an ancillary proceeding in Switzerland becomes optional. However, the protection of local interests still comes first : no to discriminations of local creditors, and no to recognition of insolvency-related decisions if the defendant lives in Switzerland. Applying Regulation 2015/848 to insolvencies linked with third States would thus be incoherent, and cooperation with Swiss authorities may come to an end.

Martina Smržová, 2011/2012 Abstract International Insolvency Law Key Words: COMI, Establishment, Vis Attractiva Concursus With regard to the broad extent of international insolvency law, the author focuses mainly on the Court's jurisdiction in the context of the European insolvency law. The subject of interest is therefore the EC Regulation No. 1346/2000 on insolvency proceedings (the "insolvency regulation"). The aim of this thesis is (1) to summarise development of interpretation of the most important terms concerning the court's jurisdiction to open the main insolvency proceedings, the secondary proceedings and proceedings which relate to the insolvency proceedings; and (2) to propose amendments to the insolvency regulation especially regarding the Report which will be prepared by the Commission on application of the insolvency regulation no later than the 1 June 2012. The work is divided into five main chapters. A short introduction in the first chapter is followed by the second chapter which deals with an introduction on the international insolvency law. The theories and the most important legal instruments on this area of law are introduced. The third and key chapter deals with the European insolvency law; it consists of eight subchapters. In the first subchapter the development and principles of...

Historically, the insolvency proceedings are a matter of the national states and their own legal regimes. With progressive European integration, the undertaking activities grow over the national levels. Also with numerous cases of defaults of companies undertaking in different states of European Union, a request for regulation setting clear set rules for performance of multijurisdictional insolvency proceedings in European Union is made. At the beginning of the twenty first century the European regulation ES No. 1346/2000 on insolvency proceedings (the "Regulation") has become this set of rules. This Regulation, which among others stayed valid throughout the biggest financial crisis that European Union had come through and it is now becoming a quality ground on which the European Parliament is trying to establish its recast the regulation of European Parliament and Council (EU) 2015/848 on insolvency proceedings (the "Recast"). The interpretation of original Regulation was done by the European Court of Justice on several occasions. This interpretation helped on successful use of the Regulation. Based mostly on European Court of Justice decision making and international insolvency law experts opinion, the Recast has been prepared. The legal framework of the Regulation is therefore much widened. Many of the...

The thesis is denoted to two principal issues of European insolvency law - COMI notion interpretation and forum shopping. On the background of historic development, it interprets the current wording of European Insolvency Regulation in the light of case law issued by the Court of Justice of the European Union. It also analyses benefits and drawbacks of proposed legislative changes to COMI motion in the connection with the contemplated amendment of the European Insolvency Regulation. It proposes that COMI of companies is determined using irrebuttable presumption of COMI in the place of their registered seat. Further, it distinguishes between positive and negative forum shopping. Also, it provides an overview of risks and advantages related to forum shopping. The thesis evaluates the efficiency of current and potential tools for forum shopping elimination. It also deals with the relation of forum shopping to EU principal freedoms.

Topical issues of European insolvency law The thesis deals with COMI issue according to European Insolvency Regulation (1346/2000 EC) in connection with insolvency of group of companies. It analyses the interpretation of COMI concept under current wording of Regulation and fundamental decisions of the Court of Justice of the European Union. It advocates the motion to determine the COMI of companies based on irrebuttable presumption of COMI in the place of registered seat. Further, the thesis concerns with current proposals for amendments to Regulation relating to COMI definition and insolvency of company groups and evaluates their benefits and drawbacks.

International Insolvency Law Key words: COMI, Insolvency regulation, insolvency, bankruptcy, forum shopping In today's globalized world, proceedings with an international element have become more and more important. This work deals with an important sector of private international law - international insolvency law. Owing to the breadth of the topic, the author has chosen to focus specifically on issues surrounding COMI (Centre of Main Interests) in the European context in conjunction with Council Regulation (EC) no. 1346/2000 on insolvency proceedings dated 29 May 2000 and its amendment in 2015. In addition to the description of the general parameters of European insolvency regulations he refers to the discussion regarding the advantages and disadvantages of COMI as the main factor for the determination of a court's jurisdiction for the initiation and conduct of insolvency proceedings with an international element, and tries to show (with references to several judgments of the European Court of Justice and national courts - among them the Czech courts) both the development of its application in practice and the development of the definition of COMI itself and criteria for assessment. In first chapters author gives the overview of theoretical grounds of the cross- border insolvency and shows the...

The aim of this PhD thesis is to analyse the current status of European insolvency law and with the help of both national and European judicial decisions put together an overview of practical obstacles that insolvency courts, debtors, creditors and insolvency trustees across Europe are facing when dealing with cross-border insolvencies. At the very core of this topic stands the European Insolvency Regulation ("EIR") which was adopted in 2015 and is effective within the member states as of June 2017. Since this regulation was put together as a recast of its predecessor, i.e. the original insolvency regulation adopted in 2000 and effective as of 2002, naturally this research is oriented at comparing the two legislative acts and mainly assessing whether or not the recast EIR managed to overcome some of the inconsistencies in the wording of the original EIR, often resulting in conflicting interpretations and a great deal of preliminary rulings filed with the Court of Justice of the EU. Apart from looking into good old instruments of private international law such as the scope, the jurisdiction, the choice of law and the recognition and enforcement rules governed by the EIR, this thesis also focuses on topics that are very bankruptcy-specific and dissimilar to anything we know from other fields of law....

The PhD thesis "Current Issues in International Insolvency Law" aims to describe and draw attention to the moments that, in the opinion of its author, have had the strongest impact on international insolvency law so far. As such it is chiefly devoted to the analysis of existing regulation in the area of European insolvency law (which is principally based on Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings - the "Old Insolvency Regulation" - and Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings - the "New Insolvency Regulation"), and also provides a selection of the relevant case law which has over time significantly changed the way in which specific issues and instruments related to this area are viewed. To do justice to the complexity of the subject matter, the thesis also discusses the determination of jurisdiction in cross-border insolvency proceedings and recognition of the effects of foreign insolvency proceedings in relations between EU and non-EU countries. The main aim of the thesis is to answer the following questions: which legal documents have had the strongest impact on the current form of international insolvency law; whether and how the interpretation of the concept of centre of a debtor's main...

An increase in economic globalisation and international trade the past two decades has amounted to an increase in the number of multinational enterprises that conduct business, own assets and have debt in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross–border insolvency (CBI). CBI refers to the situation where insolvency proceedings are initiated in one jurisdiction with regard to a debtor’s estate and the debtor also has property, debt or both in at least one other jurisdiction. When a multinational enterprise is in financial distress, the structure of such an enterprise poses significant challenges to the question of how to address its insolvency. This is due to the fact that, although the multinational enterprise is found globally in different jurisdictions around the world, the laws addressing its liquidation are local. The possibility of restructuring the multinational enterprise or liquidating it in order the satisfy creditor claims optimally depends greatly upon the ease with which the insolvency law regimes of multiple jurisdictions can facilitate a fair and timely resolution to the financial distress of that multinational enterprise. The legal response to this problem has produced two important international instruments which were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross–Border Insolvency in 1997, which has been adopted by nineteen countries including the United States of America (in the form of Chapter 15 of the US Bankruptcy Code) and South Africa (in the form of the Cross–Border Insolvency Act 42 of 2000). Secondly, the European Union adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. These two instruments address the management of general default by a debtor and are aimed at providing a legal framework which seeks to enhance legal certainty, cooperation, coordination and harmonization between states in CBI matters throughout the world. After discussing the viewpoints of various writers, it seems clear that “modified universalism” is the correct approach towards CBI matters globally. This is mainly due to the fact that the main international instruments currently dealing with CBI matters are all based upon “modified universalism”. By looking at various EU and US case law it is also evident that, although there is currently still no established test for the determination of the “centre of main interest” (COMI) of a debtor–company under Chapter 15, there is a difference in the approach adopted by courts in the EU and those in the US in this regard. This dissertation further discusses the requirements for a debtor–company to possess an “establishment” for the purpose of opening foreign non–main insolvency proceedings in a jurisdiction as well as the choice–of–law considerations in CBI matters. / Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.