Insolvency Regulation (EC) 1346/2000

The Insolvency Regulation (EC) 1346/2000 is an EU Regulation concerning the rules of jurisdiction for opening insolvency proceedings in the European Union. It determines which member states' courts have jurisdiction.

Content

The EC Regulation on Insolvency Proceedings 2000 was passed on 29 May 2000 and came into effect on 31 May 2002.[1] The EC Regulation, as its name applies, operates between member states of the European Union, and focuses upon creating a framework for the commencement of proceedings and for the automatic recognition and co-operation between the different member states. Unusually for a European regulation, the EC Insolvency Regulation does not seek to harmonise insolvency laws between the different member states.

Like the UNCITRAL Model Law on Cross-Border Insolvency, the EC Regulation also employs the concept of a centre of main interest (or "COMI"). The definition of the COMI is left to member states in their implementation of the Regulation, but paragraph (13) of the preamble states: 'The "centre of main interests" should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties.' If the COMI of an entity is outside of the European Union then the insolvency proceedings are not subject to the Regulation.[2] In relation to companies there is a presumption that the registered office will be the COMI of the company, but this presumption can be (and often is) rebutted.[3]

The EC Regulation does not define insolvency, but it does define insolvency proceedings as being 'collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator'.[4] Article 3 divides proceedings into main proceedings and territorial proceedings. The main proceedings are accorded extraterritorial effect throughout the European Union. One of the concerns which has been expressed in relation to the EC Regulation is that (other than a reference to the European Court of Justice) there is no mechanism for determining which set of proceedings are to be regarded as the main proceedings if two or more jurisdictions claims that their own proceedings are the main proceedings.[5][6]

See also

Notes

  1. ↑ "Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings". Eur-Lex. Retrieved 23 June 2015.
  2. ↑ Re the Arena Corporation Ltd [2003] EWHC 3032 (Ch.), affirmed on appeal ([2004] EWCA Civ 371).
  3. ↑ Re AIM Underwriting Agencies [2004] EWHC Civ 2114; Re TXU Europe German Finance BV [2005] BCC 90.
  4. ↑ Article 1(1).
  5. ↑ Re Eurofood IFSC Ltd (Case C-341/04), [2006] ECR 1-701
  6. ↑ Andrew Keay and Peter Walton (2011). Insolvency Law (2nd ed.). Jordans. p. 400. ISBN 978-1846611193.

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References

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