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EG:s förordning om insolvensförfaranden - dess innehåll och konsekvenser för svensk rättstillämpning

Axrup, Li (2001)
Department of Law
Abstract
The work towards a uniform system within the EU on how to handle international insolvency proceedings has taken more than 37 years. The council regulation on insolvency proceedings, adopted on May the 29th 2000, seeks to create a basis for mutual recognition of insolvency proceedings, to clarify which national rules apply to different issues within these proceedings and to give the liquidator international powers. This thesis aims at giving details of the rules and application of the regulation and at investigating how these new rules might affect Swedish law, including what changes might be caused by the regulation in Sweden, de lege ferenda as well as de sententia ferenda. The regulation covers two kinds of insolvency proceedings, main... (More)
The work towards a uniform system within the EU on how to handle international insolvency proceedings has taken more than 37 years. The council regulation on insolvency proceedings, adopted on May the 29th 2000, seeks to create a basis for mutual recognition of insolvency proceedings, to clarify which national rules apply to different issues within these proceedings and to give the liquidator international powers. This thesis aims at giving details of the rules and application of the regulation and at investigating how these new rules might affect Swedish law, including what changes might be caused by the regulation in Sweden, de lege ferenda as well as de sententia ferenda. The regulation covers two kinds of insolvency proceedings, main proceedings and secondary proceedings. A main proceeding is universal and covers all creditors and can be opened by the courts of the state where the debtor has his main interest. Secondary proceedings, however, only cover the property of the debtor within the state of the opening of the secondary proceeding, and can only be opened by the courts in the country where the debtor has an establishment, hence excluding physical persons. Secondary proceedings are subordinated to the main proceeding. If a main proceeding has not been opened, the right to open secondary proceedings is restricted, all creditors can however lodge claims in any proceeding. A decision to open an insolvency proceeding, and any decision relating to this proceeding, as long as it is derived from insolvency law, is to be directly and automatically recognised in all other member states. The opening of an insolvency proceeding shall have the same effects in any other member state as in the opening state. Decisions shall be enforced in other member countries, unless public policy causes for an exception. The liquidator can also request measures directly under the law where enforcement is to take place. The regulation gives the liquidator power to act according to the law of the opening state, in another member state. The regulation also contains some rules of coordination and exchange of information between liquidators in parallel proceedings, giving the liquidator of the main proceeding powers to affect secondary proceedings. Furthermore the regulation provides rules on applicable law. The main rule is set out in article 4 and points out the law of the opening state as the applicable law to insolvency proceedings. This rule is however revised by quite some exceptions. Articles 5, 6 and 7 restrict the effects of the insolvency proceedings not to cover rights in rem, right to demand set-off and seller's right based on a reservation of title. Articles 8, 9, 10, 11, 14 and 15 exclude the law of the opening state as the only law applicable to different legal situations. Contracts relating to immoveable property, financial markets, contracts of employment and effects on lawsuits pending, are to be governed solely by the law appointed in these articles. Article 11 governs effects on rights of the debtor that are subject to registration, pointing out the law in the country of the registration as the applicable law. The last exceptions in article 13 and article 14 limits the possibility to challenge detrimental acts and sets up rules to protect third party purchasers of immoveable assets or some registered assets. In Sweden, the courts have wide jurisdiction as regards secondary proceedings. In this aspect, the regulation narrows the Swedish jurisdiction to a considerable extent. Due to the fact that no secondary proceedings opened against physical persons will be recognised in other member states, it might, in my opinion, be motivated to restrict opening of such proceedings when the debtor has his centre of main interest in another member state. Between the Nordic countries the Nordic bankruptcy convention has been in force since 1933. For the relations between Sweden and Finland the regulation will be applied instead. Due to a difference between the convention and the law implementing the convention in Sweden, insolvency proceedings opened in accordance with the regulation, might not be recognised by the convention in Norway and Iceland. Furthermore under Swedish law liens, in immoveable property are not subject to obligatory registration. This results in article 8 not covering liens, in Swedish immoveable property, held by a debtor. The applicable law should therefore be the law of the opening state. According to article 15 of the regulation, Swedish law will govern the effects of an insolvency proceeding on a pending lawsuit in Sweden. This means, according to Swedish law, a right for the liquidator to take over the debtor's position in a trial. This right should also be given to the liquidator of an insolvency proceeding opened in another member state, notwithstanding that the powers of the liquidator shall be decided upon by the law of the opening state. In my opinion, the regulation also affects the debtor's obligation to actively contribute to the realisation of assets in other countries. There is, in my opinion, no need to obligate the debtor to contribute to the realisation of foreign assets, since the regulation gives other means to realising foreign property. There is, for the same reason, no need to exclude foreign property when deciding on insolvency, as long as the property is situated in another member state. The Swedish government's guaranteed payment for workers' claims does not cover any claims in insolvency proceedings outside the Nordic countries. I would recommend a Swedish rule, similar to the one in the Nordic bankruptcy convention, stating that claims raised due to work with a substantial connection to Sweden should be covered by the Swedish guarantee. The regulation clarifies that foreign governmental claims can be lodged in any insolvency proceeding opened in accordance with the regulation. However, the law of the opening state decides the ranking of claims. Due to the rules on applicable law in the regulation, these claims will be unprioritised in Swedish proceedings. This situation cannot be solved by international private law, since the regulation excludes these rules when it talks about applicable law. I would therefore suggest a rule saying that governmental claims, in main insolvency proceeding, enjoy priority in the assets of the debtor in the state lodging the claim. (Less)
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author
Axrup, Li
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Förmögenhetsrätt, EG-rätt
language
Swedish
id
1555985
date added to LUP
2010-03-08 15:55:19
date last changed
2010-03-08 15:55:19
@misc{1555985,
  abstract     = {The work towards a uniform system within the EU on how to handle international insolvency proceedings has taken more than 37 years. The council regulation on insolvency proceedings, adopted on May the 29th 2000, seeks to create a basis for mutual recognition of insolvency proceedings, to clarify which national rules apply to different issues within these proceedings and to give the liquidator international powers. This thesis aims at giving details of the rules and application of the regulation and at investigating how these new rules might affect Swedish law, including what changes might be caused by the regulation in Sweden, de lege ferenda as well as de sententia ferenda. The regulation covers two kinds of insolvency proceedings, main proceedings and secondary proceedings. A main proceeding is universal and covers all creditors and can be opened by the courts of the state where the debtor has his main interest. Secondary proceedings, however, only cover the property of the debtor within the state of the opening of the secondary proceeding, and can only be opened by the courts in the country where the debtor has an establishment, hence excluding physical persons. Secondary proceedings are subordinated to the main proceeding. If a main proceeding has not been opened, the right to open secondary proceedings is restricted, all creditors can however lodge claims in any proceeding. A decision to open an insolvency proceeding, and any decision relating to this proceeding, as long as it is derived from insolvency law, is to be directly and automatically recognised in all other member states. The opening of an insolvency proceeding shall have the same effects in any other member state as in the opening state. Decisions shall be enforced in other member countries, unless public policy causes for an exception. The liquidator can also request measures directly under the law where enforcement is to take place. The regulation gives the liquidator power to act according to the law of the opening state, in another member state. The regulation also contains some rules of coordination and exchange of information between liquidators in parallel proceedings, giving the liquidator of the main proceeding powers to affect secondary proceedings. Furthermore the regulation provides rules on applicable law. The main rule is set out in article 4 and points out the law of the opening state as the applicable law to insolvency proceedings. This rule is however revised by quite some exceptions. Articles 5, 6 and 7 restrict the effects of the insolvency proceedings not to cover rights in rem, right to demand set-off and seller's right based on a reservation of title. Articles 8, 9, 10, 11, 14 and 15 exclude the law of the opening state as the only law applicable to different legal situations. Contracts relating to immoveable property, financial markets, contracts of employment and effects on lawsuits pending, are to be governed solely by the law appointed in these articles. Article 11 governs effects on rights of the debtor that are subject to registration, pointing out the law in the country of the registration as the applicable law. The last exceptions in article 13 and article 14 limits the possibility to challenge detrimental acts and sets up rules to protect third party purchasers of immoveable assets or some registered assets. In Sweden, the courts have wide jurisdiction as regards secondary proceedings. In this aspect, the regulation narrows the Swedish jurisdiction to a considerable extent. Due to the fact that no secondary proceedings opened against physical persons will be recognised in other member states, it might, in my opinion, be motivated to restrict opening of such proceedings when the debtor has his centre of main interest in another member state. Between the Nordic countries the Nordic bankruptcy convention has been in force since 1933. For the relations between Sweden and Finland the regulation will be applied instead. Due to a difference between the convention and the law implementing the convention in Sweden, insolvency proceedings opened in accordance with the regulation, might not be recognised by the convention in Norway and Iceland. Furthermore under Swedish law liens, in immoveable property are not subject to obligatory registration. This results in article 8 not covering liens, in Swedish immoveable property, held by a debtor. The applicable law should therefore be the law of the opening state. According to article 15 of the regulation, Swedish law will govern the effects of an insolvency proceeding on a pending lawsuit in Sweden. This means, according to Swedish law, a right for the liquidator to take over the debtor's position in a trial. This right should also be given to the liquidator of an insolvency proceeding opened in another member state, notwithstanding that the powers of the liquidator shall be decided upon by the law of the opening state. In my opinion, the regulation also affects the debtor's obligation to actively contribute to the realisation of assets in other countries. There is, in my opinion, no need to obligate the debtor to contribute to the realisation of foreign assets, since the regulation gives other means to realising foreign property. There is, for the same reason, no need to exclude foreign property when deciding on insolvency, as long as the property is situated in another member state. The Swedish government's guaranteed payment for workers' claims does not cover any claims in insolvency proceedings outside the Nordic countries. I would recommend a Swedish rule, similar to the one in the Nordic bankruptcy convention, stating that claims raised due to work with a substantial connection to Sweden should be covered by the Swedish guarantee. The regulation clarifies that foreign governmental claims can be lodged in any insolvency proceeding opened in accordance with the regulation. However, the law of the opening state decides the ranking of claims. Due to the rules on applicable law in the regulation, these claims will be unprioritised in Swedish proceedings. This situation cannot be solved by international private law, since the regulation excludes these rules when it talks about applicable law. I would therefore suggest a rule saying that governmental claims, in main insolvency proceeding, enjoy priority in the assets of the debtor in the state lodging the claim.},
  author       = {Axrup, Li},
  keyword      = {Förmögenhetsrätt,EG-rätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {EG:s förordning om insolvensförfaranden - dess innehåll och konsekvenser för svensk rättstillämpning},
  year         = {2001},
}