Centre of Main Interest (COMI) and Jurisdiction of National Courts in Insolvency Matters (Insolvency Status)

Abstract

The applicable jurisdiction for insolvency proceedings, as provided by the Regulation (EC) No 1346/2000 on insolvency proceedings, is the court of the Member State where the debtor’s centre of main interest (COMI) is located (Article 3(1)). The Regulation, however, does not provide a comprehensive definition of the COMI. This paper seeks to explore the meaning and developments behind the meaning of COMI as influenced by judicial reasoning and conflicts across Member States. The study centres around the emerging jurisprudence and analyses case law across Member States in order to draw conclusions on the meaning of COMI and the emerging concepts. Extensive consideration of statutory interpretation, case reports and judicial comment is present in order to inform and develop conclusions. In the absence of a definition it appears that the only relevant European guidance emerges from recital 13 and Article 3 (1). With little guidance in the Regulation, it has therefore been left to national courts to decide how the notion of COMI should be interpreted. Determining the COMI has emerged as one of the most controversial aspect and the principle point of legal conflict, with some highly debated cases within member states’ courts. On the basis of the case law, it is suggested that the interpretation of COMI is more flexible in UK and Italian courts. The approach adopted in continental Europe is referred to as the “centre of operations approach”, i.e., the debtor’s COMI has to be determined by the place where he is “ascertainable by third parties”. The Anglo Saxon approach, on the other hand, is known as the “mind of management approach”, i.e., the debtor’s COMI must be situated where decisions are actually made. The latter seems to enjoy a more practical and accessible approach.

Keywords: European Union, EU Law, Property, Cross Boarder insolvency, bankruptcy, private international law, conflict-of-laws, universality, territoriality, unity, plurality, habitual residence, domicile, jurisdiction, forum shopping, Centre of main interest, COMI, main proceedings, secondary proceedings

JEL Classification: G33, K10, K11, K12, K13, K22, K29, K30, K33, K40, K42, K49, M20, O52