Jurisdiction in Insolvency: A Study of European Courts' Decisions
Author: Mevorach, Irit
Source: Journal of Private International Law, Volume 6, Number 2, August 2010 , pp. 327-357(31)
Publisher: Hart Publishing
Abstract:The jurisdictional standard adopted in international insolvency regimes- the centre of main interests (COMI) - has been strongly criticised for being overly fact-sensitive and thus to undermine certainty and predictability. In the present study this argument is tested by assessing how the COMI concept applied to legal persons fairs in practice. It empirically investigates cases applying the rule under the EC framework for international insolvency in order to identify trends in the way COMI is used by courts. Based on the findings, the paper suggests that the criticism directed at COMI is largely misconceived. It shows that the performance of the rule is quite robust as courts across the EU embrace a real seat approach in a surprisingly consistent manner. It also identifies the key criterion which is used by courts in determining COMI. It concludes that, moving forward, COMI as a real seat concept should continue to spread and prevail as the key jurisdictional rule in international insolvency both within Europe and globally.
Keywords: CENTRE OF MAIN INTERESTS; CROSS-BORDER INSOLVENCY; EC REGULATION ON INSOLVENCY PROCEEDINGS; INCORPORATION THEORY; JURISDICTION; MAIN PROCEEDINGS; REAL SEAT; TERRITORIAL PROCEEDINGS; UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY
Document Type: Research Article
Publication date: August 1, 2010
- Hart Publishing launched the Journal of Private International Law (J. Priv. Int. L.) in spring 2005. The journal covers all aspects of private international law, reflecting the role of the European Union and the Hague Conference on Private International Law in the making of private international law, in addition to the traditional role of domestic legal orders.
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