Private International Law Rules in the Insolvency Regulation Recast: A Reform or a Restatement of the Status Quo?

20 Pages Posted: 25 Aug 2015

See all articles by Federico M. Mucciarelli

Federico M. Mucciarelli

Università degli studi di Modena e Reggio Emilia (UNIMORE) - Dipartimento di Economia Marco Biagi, Modena

Date Written: August 25, 2015

Abstract

The European Parliament, after a lengthy debate, has eventually approved an Insolvency Regulation Recast, which amends Regulation 1346/2000 on cross-border insolvency proceedings. The Recast provides for significant innovations of the original Regulation, such as a EU-wide register of insolvencies or a new proceeding for insolvencies of corporate groups. The fundamental logic of the Regulation, however, has not been changed: the Recast does not harmonise insolvency rules at EU level and its goal is still selecting competent venues and applicable insolvency regimes. In many respects, the Recast simply codifies CJEU’s case law, with the aim of increasing legal certainty. The Recast is however innovative regarding the definition of COMI, by repealing the causality relation between criterions of “permanence” and “ascertainability”. Eventually, the Recast aims at better coordinating secondary proceedings and main proceedings; in this regard, it introduces “synthetic secondary proceedings”, whereby the insolvency practitioner of a main proceeding undertakes to respect other Member States distributional criterions in order to avoid the opening of a secondary proceeding. The real impact of these innovations is uncertain and depends on how national case law will interpret and apply the new rules.

Keywords: cross-border insolvencies, Insolvency Regulation, conflict of law

JEL Classification: K20

Suggested Citation

Mucciarelli, Federico M., Private International Law Rules in the Insolvency Regulation Recast: A Reform or a Restatement of the Status Quo? (August 25, 2015). Available at SSRN: https://ssrn.com/abstract=2650414 or http://dx.doi.org/10.2139/ssrn.2650414

Federico M. Mucciarelli (Contact Author)

Università degli studi di Modena e Reggio Emilia (UNIMORE) - Dipartimento di Economia Marco Biagi, Modena

Viale Berengario 51
Modena, Modena 41121
Italy

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