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The Centre of Main Interests - A troublesome phrase in the EC Regulation on Insolvency proceedings

Althini, Johan (2006)
Department of Law
Abstract
After much work and a long time after its instigation, a legislation regulating insolvency law in the European Union finally saw the light of day in 2002. Its 47 articles and 33 recitals establish jurisdiction, choice of law as well as recognition, in cross-border insolvencies within the EU and with this new legislation came a new expression to the legal area, namely 'centre of main interests'. As this locution is a decisive factor when establishing the Regulation's applicability it is of the utmost importance that the term is properly understood and uniformly used. In the regulation itself very little guidance is given in this respect and hence, litigation has begun to emerge in the countries around the EU. As large international... (More)
After much work and a long time after its instigation, a legislation regulating insolvency law in the European Union finally saw the light of day in 2002. Its 47 articles and 33 recitals establish jurisdiction, choice of law as well as recognition, in cross-border insolvencies within the EU and with this new legislation came a new expression to the legal area, namely 'centre of main interests'. As this locution is a decisive factor when establishing the Regulation's applicability it is of the utmost importance that the term is properly understood and uniformly used. In the regulation itself very little guidance is given in this respect and hence, litigation has begun to emerge in the countries around the EU. As large international corporations exist all over Europe, it is not unusual for a company that has business in several countries to become insolvent and bring this issue to the fore. Different courts in different countries have all done their best in trying to give life to the fairly new regulation and its rules, but in this essay's specific area more is needed to reach a satisfactory state of affairs. However, many similarities can be seen in the courts' judgments as to what they consider important when trying to establish a company's COMI. This can give some idea on how the expression is to be understood, albeit national courts' decisions are not a reliable source of law in an international context. In comments to these cases and to the Regulation itself, many authors have given their thoughts on the situation, and consequently there is now some helpful material available to us. What's more, the explanatory report regarding the Convention on insolvency proceedings, has been suggested by both authors and courts as a useful text for help with interpretation, but as it is not an official document and has not even been properly published, it remains unclear to what exact extent it can be used. However, the only real authority when it comes to this sort of legislation is the European Court of Justice and recently, a case has been referred there for interpretation of the troublesome phrase. The court has yet to deliver its findings, so for now the conclusion will have to be that the uncertainty continues, but hopefully not for much longer. (Less)
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author
Althini, Johan
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Civilrätt; oklassificerad
language
English
id
1555622
date added to LUP
2010-03-08 15:55:17
date last changed
2010-03-08 15:55:17
@misc{1555622,
  abstract     = {After much work and a long time after its instigation, a legislation regulating insolvency law in the European Union finally saw the light of day in 2002. Its 47 articles and 33 recitals establish jurisdiction, choice of law as well as recognition, in cross-border insolvencies within the EU and with this new legislation came a new expression to the legal area, namely 'centre of main interests'. As this locution is a decisive factor when establishing the Regulation's applicability it is of the utmost importance that the term is properly understood and uniformly used. In the regulation itself very little guidance is given in this respect and hence, litigation has begun to emerge in the countries around the EU. As large international corporations exist all over Europe, it is not unusual for a company that has business in several countries to become insolvent and bring this issue to the fore. Different courts in different countries have all done their best in trying to give life to the fairly new regulation and its rules, but in this essay's specific area more is needed to reach a satisfactory state of affairs. However, many similarities can be seen in the courts' judgments as to what they consider important when trying to establish a company's COMI. This can give some idea on how the expression is to be understood, albeit national courts' decisions are not a reliable source of law in an international context. In comments to these cases and to the Regulation itself, many authors have given their thoughts on the situation, and consequently there is now some helpful material available to us. What's more, the explanatory report regarding the Convention on insolvency proceedings, has been suggested by both authors and courts as a useful text for help with interpretation, but as it is not an official document and has not even been properly published, it remains unclear to what exact extent it can be used. However, the only real authority when it comes to this sort of legislation is the European Court of Justice and recently, a case has been referred there for interpretation of the troublesome phrase. The court has yet to deliver its findings, so for now the conclusion will have to be that the uncertainty continues, but hopefully not for much longer.},
  author       = {Althini, Johan},
  keyword      = {Civilrätt; oklassificerad},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Centre of Main Interests - A troublesome phrase in the EC Regulation on Insolvency proceedings},
  year         = {2006},
}