Centre of Main Interests (COMI) Challenges in EU States

8237 words (33 pages) Essay in European Law

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Last modified: 27/03/19 Author: Law student

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In dealing with cross-border corporate insolvency under the Insolvency Regulation 2000 (Council Regulation (EC) 1346/2000), the Centre of Main Interests (COMI) is used in determining where a main insolvency procedure can be opened.

Critically analyze the challenges faced by the use of COMI within the European Union member states.

1. Introduction

The vital aim of the European Community’s formation was to craft an internal market which would enhance the development of the economies in the Member States.[1] This augmented the cross-border insolvency proceedings due to the rise in the companies’ transnational activities.[2] Cross-border insolvency deals with circumstances where the liabilities and assets of a debtor are situated in more than one jurisdiction and becomes subject to insolvency.[3] The Regulation (Council Regulation (EC) 1346/2000) governs such proceedings, containing rules concerning jurisdiction and conflict of law, in the effort to offer uniformity in the European Union (EU) for proceedings of insolvency through reciprocal recognition.[4] Centre of Main Interests (COMI) which is at the heart of the Regulation thus has utmost importance since it is the prime foundation for the initiation of the main proceedings and in determining the relevant law to be applied.[5]

The interpretation of Insolvency Regulation 2000 in relation to insolvency proceedings has been subject to widespread controversies since its enforcement on 31st May 2002.[6] Essentially, the term ‘COMI’ has been the prime focus of such debates, which decides the jurisdiction of opening main proceedings, and consequently the law valid to be applied to the said proceedings according to Article 4(1) of the Regulation.[7] For this reason, after thorough considerations and the prevailing complexities, a new Regulation (EU) 2015/848 was adopted which came into force on 26June 2017, but applying solely to relevant insolvency proceedings.[8]

Where proceedings of insolvency in the United States are governed by federal law[9], the system for insolvency proceedings in EU Member States is substantially different.[10] The legal regime of Europe has thus received preference over other states due to its advantages of better cost, creditors’ protection and speedy pace of proceedings.[11]

Given the strict nature of insolvency regimes in France, Germany and United States; companies have particularly preferred England’s insolvency regime, as it allows flexibility in the proceedings.[12] However, the notion of COMI has been a subject of extensive criticisms due to its triggering interpretation pliability and instigating inconsistencies.[13] Among other issues, the instigation of COMI migration by the debtors to have an auspicious/better legal footing in dealing with their insolvency matters presented many challenges within the EU Member States.[14]  

This essay aims to critically evaluate the problems and the practical issues that the EU Member States have faced due to the notion of the COMI provided in the EU Regulation No. 1346/2000. In order to properly analyse the challenges encountered by the EU Member States; discussion will focus on the old Regulation and will subsequently delve into the discussion of new Recast Regulation and analyse what the Recast Regulation has brought to the table in relation to the notion of COMI.

2. The Notion of COMI

It is very important to understand the concept of COMI in order to apprehend the issues and challenges faced by the EU Member States. COMI is a concept which is independent from Member States’ national laws and carries an autonomous standing.[15] The EU Regulation 1346/2000, Article 3 (1) states that the place which has the debtor’s centre of main interests gives jurisdiction to the court of the concerned Member State to initiate main insolvency proceedings.[16] Furthermore, if there is no proof of contradiction, COMI is presumed to be the place where the company has its registered office.[17] Although the Regulation does not define COMI, it is stated in Recital 13 of the Regulation that the location/setting where a debtor carries out administration in pursuance of its interests on a consistent basis and “ascertainable by third parties”[18] should be the COMI of the debtor.[19] Due to the vague nature of the COMI concept and the absence of its definition; determining the place of the COMI has thus been quite problematic/challenging in more than one capacity.[20]

2.1 Eurofood IFSC Ltd

In order to properly interpret Article 3 of the Regulation, the European Court of Justice (ECJ) was called upon to offer clarification in the Eurofood[21] case. The ECJ’s decision offered its insight and stipulated that where a company does not conduct its activities in a EU Member State where it has its registered headquarters, or is merely a mailbox company; the said aforementioned presumption can be rebutted as provided in Article 3 (1) of the Regulation.[22] The decision also clarified the necessity of third parties’ ascertainment to make sure that there is a legal certainty pertaining to the identification of the court which holds the jurisdiction to initiate main proceedings of insolvency.[23]

Whilst considering Article 4 (1) of the Regulation, further light was shed on the significance of the foreseeability and legal certainty, given that the determination of the court possessing jurisdiction would lead to specification/identification of the applicable law.[24]  Thus, one can deduce that the place where the main activity is carried out does not ineludibly determine the COMI, but the administration of the interests of the debtor on a day to day basis coupled with the ascertainment of third parties (particularly creditors) should be considered.[25] However, it has been argued that creditors (third parties) may have differing views in relation to such ascertainment and may create a challenging scenario. Nevertheless, it is suggested that creditors with the highest worth claims should be considered in the such concerned cases. [26]

3. The Issue Pertaining to the Determination of COMI

Against the aforementioned background, for the determination of the place of administration, the COMI cannot merely be identified by the place of business activity or the location of creditors as the matter is quite multifactorial.[27] Although the notion of COMI has been substantially significant for the application/interpretation due to its central role in the Regulation, the concept is intrinsically ambiguous.[28] Where the intention of the COMI has on one hand been to depict the debtor’s main economic activity[29], the concept on the other hand presumes that the location of the debtor’s institution where it has its registered office, is the place of COMI.[30] The character of the notion is thus very open, which although has offered flexibility, concomitantly it has also proven to be a substantial weakness of the Regulation, as the practical implementation of the COMI concept demands evaluation and assessment of the foregoing situation/circumstances of the debtor.[31] This therefore can consume a considerable amount of time, and result in different courts concluding and reaching differing decisions.[32]

Another legal predicament which surfaced due to the concept of COMI, was referred to ECJ in the case of Interedil[33] in relation to whether the interpretation of the COMI ought to be in accordance with the national law or under the sphere of EU law. It was however provided that the COMI of the debtor ought to be put to interpretation under the EU law and should be independent of the national law.[34] Arguably, this could be due to the fact that EU laws concerning insolvency have precedence over national laws in EU Member States, especially in situations where there is conflict between domestic laws of a member state and the Regulation.[35]

Further, the Regulation stipulates no requirement regarding the time period which would render the possibility to effectively institute COMI at a new place.[36] However, COMI demands the new location to be of a genuine nature, where the main interests are administered on a regular basis.[37] Nonetheless, to establish COMI there is no clarity on what defines regular basis.[38]

Subsequently, another challenge posed has been the fact that the old Regulation does not determine as to whether the court originally consulted reserves the jurisdiction, where prior to the decision of the court, the debtor migrates its COMI to a new location subsequent to the request of opening the main proceedings.[39] This has therefore in practice instigated many confusions and manipulations, where the debtors would run to the courts to shift their COMI to a different Member State and thus distort legal certainty.[40]

4. Groups of Companies – The Issue of Legal Certainty – Rebuttal of the Presumption and Unclear Terms

One of the key and important aspect which has been a challenge in applying the Regulation has been dealing with groups of companies which has its subsidiaries in more than one different Member States.[41] The issue has been quite significant due to the complications presented in the past, given that cross-border insolvencies relating to groups of companies have not been provided for in the said Regulation.[42] The allocation of jurisdiction and the applicable law in such cases therefore has not been an easy task under the scope of the Regulation.[43] It is usually desirable for international group of companies to have its insolvency proceedings to be initiated in one jurisdiction and be subject to the same applicable law. The COMI issue pertaining to such companies is therefore such that when the registered office presumption is put into effect, the different companies’ main insolvency proceedings linked to the group could be initiated in different Member States.[44] For instance, where the subsidiary is situated in Ireland and the parent company in Italy, the main insolvency proceedings would be opened for the subsidiary in Ireland and for the parent company in Italy.[45] Thereby, it can be argued that the Regulation has not been clear in providing descriptive circumstances where the said presumption could be rebutted allowing the subsidiary’s COMI to be placed in the parent company’s country.

The Eurofood judgement on 2 May 2006 as discussed in section 2 in relation to the aforementioned issue however provided some guidance, but, the said solution received widespread criticism.[46] It has been argued that the approach of the ECJ left the issue open-ended and very general in providing sufficient circumstances when the said Regulation’s presumption could be rebutted; hence triggering unpredictability in legal certainty where different companies’ place of COMI linked to one group are determined.[47]

In addition, the secondary proceedings for groups of companies proved to make the setting more complex.[48] Where the subsidiary’s COMI would be determined at the place of the parent company, the possibility of initiating secondary proceedings at the place of the subsidiary still existed as the subsidiary could be considered to possess an establishment at the State where its operations are administered.[49] The approach of the ECJ and the Regulation are both argued to have lacked in recognising the issues in relation to the groups of companies, which are often incorporated in different states due to company’s operations and consideration of tax laxation.[50]

The Regulation’s Recital 13 referring to regular basis of ‘administration of interests’, triggers more obscurity by adding more factors to the concept of COMI other than the registered office criterion.[51] The ‘administration of interests’ could signify/entail activities of sale, functions of the head office or regular manufacturing. As far as the ‘regular basis’ point is concerned, in practice, an activity which is considered regular at a certain time; might discontinue to be regular at another time.[52] Finally, the ‘ascertainment by third parties’ has been open-ended and does not provide for who the third parties are.[53] Even though interpretations have pointed to creditors of the debtor,[54] it is uncertain as to why Recital 13 uses the term ‘third parties’ rather than mere creditors.

5. The Abuse of COMI – COMI Migration and Forum Shopping

Where it is clearly expounded in Recital 4 of the Regulation 1346/2000, that forum shopping is necessary to be eluded to ensure adequate function of the internal market; it can be argued that COMI has itself provided room for forum shopping because of COMI migration.[55] Numerous cases have served as examples which show the favourable outcomes for companies where the law to be applicable changed after the relocation of the COMI. Where COMI migration can be favourable and is deemed to be fair in certain legitimate circumstances to overcome common-pool issues; however, its abuse can instigate severe problems when it comes to practice.[56]

The presumption under Article 3 (1) that the place of registered office is the debtor’s COMI, has been used and abused by numerous companies to migrate its COMI through the transfer of its registered office.[57] Likewise, companies have also transferred their COMI without transferring their registered office, which is also referred to as the isolated COMI relocation.[58] These routes have widely been adopted by companies in the European Union. The following two cases serve as good examples for analysis.

5.1 The Case of Schefenacker AG

Given the flexible nature of English insolvency law, Schefenacker AG established in Germany, a group manufacturer after facing severe financial troubles in 2006 resolved to shift its COMI to England.[59] Resultantly, a restructuring plan was adopted to move the COMI, thus forming an English limited company in England.[60] The migration of Schefenacker’s COMI proved successful and allowed the company to evade major liquidation.[61] The example of Schefenacker illustrates how the COMI could successfully be shifted via relocation of the registered office to save the company and its assets.

5.2 The Case of The Pin Group AG S.A.

The Pin Group, one of the largest mail service companies providing its services in Germany, was registered in Luxembourg, faced economic difficulties in 2007 after a minimum wage criterion was introduced by the Government of Germany.[62] A centralised executive committee was created by the Group which started holding its meetings in Germany (Cologne), managing all the substantial decisions of the business.[63] The court of Germany concluded the COMI to be in Germany, since third parties including creditors could ascertain that the material decisions of The Pin Group were settled in Germany and not at Luxembourg which was the registered office.[64] This is a perfect example of an isolated migration of the COMI; carried out without moving the registered office, with the modification of mere certain facts. This however, was criticized as abusive by many critics due to the fact that the action was taken after the group faced financial difficulties.

Law shopping or forum shopping via synthetic interpretation of the COMI to change the location to a new jurisdiction can cause serious problems for stakeholders and the creditors.[65] Given that the transfer of COMI does not only change the jurisdiction but also changes the law to be applied can be very harmful in terms of legal certainty.[66] For example, in the BenQ Mobile Holdings[67] case, the decision of the location of COMI made a considerable difference for the creditors which financially amounted to millions of euros.[68] This was due to the decision as to whether the COMI of the company existed in the Netherlands or Germany.[69] In terms of legal certainty, one can argue that it is unfair to the creditors where they can be without their consent stripped off of their rights, via a plain and swift transfer of the COMI.

As the transfer of COMI changes the law which is to be applied, it therefore does not only affect the creditors but also other stakeholders who may encounter the same distasteful problems.[70] For instance, the liability of directors in certain jurisdictions does not only depend on tort law and company law but also relies on bankruptcy law which can result in severe liabilities for the directors. Hence, it is imperative that COMI is appropriately stable and foreseeable, so that there is certainty and provision of sufficient legal protection.

The Insolvency Regulation 2000 stipulates that once a Member State’s court has decided to initiate insolvency proceedings, such decision is to be acknowledged across the community,[71] conditional to “an insignificant public policy caveat”.[72] Given that the notion of COMI has been quite vague, there has always been a chance of auspiciously justifying the COMI at a location which is desirable to the parties involved in insolvency proceedings.[73] There is a tendency that the court would most likely agree to this, as the COMI’s concept has been quite ambiguous. This problem leads to a situation where the concerned parties would run to the courts to open insolvency proceedings in the jurisdiction which would be most desirable to them. The ‘first to file’ has urged the concerned parties to rush to courts for this purpose and has badly impacted the aspect of legal certainty.[74] Keeping this in mind, the parties to insolvency proceedings have thus arguably effectively abused the notion of COMI for their personal benefits.

To alleviate problems, it is argued that the concept of COMI should be replaced with the Registered office notion which would help in easing up the underlying problems. However, against this argument, there are many improbable aspects attached to the Registered office notion and whether it would improve the cross-border insolvency proceedings is quite debatable.

6. COMI and the New EU Regulation No. 848/2015 (Recast)

After 10 years of adoption of the discussed EU Regulation No. 1346/2000; given the widespread criticism, challenges and economic instabilities which the European Member States faced due to uncertainties of interpretation and other loopholes; it was realized by the European Commission that there was a need to reform the current Regulation.[75] Following a public consultation in June 2012 and numerous other discussions, a new EU Regulation 848/20.5.2015 was approved by the Parliament in May 2015.[76] The new Regulation came into force on 26 June 2017[77] and established/maintained in territory one and numerous registers of insolvency on 26 June 2018.[78] By 26 June 2019, the European Commission will inaugurate a decentralised system pertaining to the insolvency registers’ interconnection.[79] The new Regulation will not have a retrospective effect, meaning that it would not apply to the insolvency proceedings which have already been initiated under Regulation No. 1346/2000.

6.1 What does the new Regulation No. (848/2015) bring to the Table to reduce the challenges?

The basis of the Recast Regulation upholds the same foundation as that of the EU Regulation 1346/2000, however it presents some changes and moderations which are aimed to suit the practical challenges of the EU insolvency proceedings.[80] The new Regulation intends to bring about tangible individualization and improve the COMI concept – location of the debtor, targeting to avoid and fight the undesired forum shopping.[81]

Considering the judgements of the ECJ cases Interedil, Susanne Schreiber Staubitz, Rastelli and Eurofood; the Recast Regulation in Article 3 (1) states that “the centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties”. [82] The new Regulation presents the presumption that the COMI of the debtors for legal entities concurs with the location of the registered office, if there is an absence or lack of proof to contradict the same.[83] The rebuttal of the said presumption can be made by the national court under a thorough and complete assessment of the entire objective rudiments and keeping in mind that the centre of the place is the actual heart of the management, control and economic interests of the indebted company, as recognized by third parties.[84]

Another interesting point added to Article 3 (1) of the new Regulation is that the said presumption is only to be applied where “the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.”[85]

6.1.1 Going Deep

There are differing opinions on whether the new Recast Regulation has brought something tangible to the table or not. By closely assessing and evaluating the new Regulation, it shows that the Recast Regulation has delivered a rational revision of the old one.[86] The new Regulation has considered the EU jurisprudence, with the aim to deliver a rather effectual design by casing a relatively better scope of interpretation, with the potential to appropriately determine the COMI and prevent the practice of forum shopping to stop its abuse.[87] The addition of the 3-month period in Article 3 (new Regulation) for this purpose seems to be a step in the right direction. However, at the same time, it is argued by many scholars that the new Regulation has not hugely modified the approach and the foundation laid down by the old Regulation; as it does not per-say provide new or novel ground-breaking solutions.[88] Nonetheless, the new Regulation seems to have widened and fortified the structure of collaboration and recognition, as framed by the old Regulation for Insolvency.[89]

7. Conclusion

The COMI concept as defined by the old Regulation has been quite rigid and intangible in nature, triggering numerous legal and practical issues. Surprisingly, even though COMI is a fundamental feature of the Regulation, it has been found to have fundamental weaknesses and flaws. Due to this reason, the EU Member States have faced numerous challenges in initiating and carrying out the cross-border insolvency proceedings under the old Regulation. Among others, as highlighted in the essay; the basic problems have revolved around the issues of legal uncertainty, the unclear/lack of guidance for the rebuttal of COMI registered office presumption, forum shopping, and most importantly the absence of recognition of the modern corporate groups. This thus has led to the creation of a very complex setting for cross-border insolvency proceedings in the Member States and impelled many legal and academic discussions to hunt for practical solutions.

Where the Recast Regulation is deemed to have introduced thoughtful amendments by aiming to enhance predictability and legal certainty throughout the EU, yet some argue that the changes are not intrinsically revolutionary. Suggestions have been proposed by many scholars in relation to the subject, and rightfully so, since there is always room for an improvement. However, only time will decide as to how effective the new changes, as incorporated in the Recast Regulation will realistically prove to be in making the process of transnational insolvency proceedings uncomplicated and abuse-free.

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[1] Intertax, ‘EC: Completing the Internal Market’ [1985] 13 (9) Intertax 218

See also: Andrea M. Corcoran; Terry L. Hari, ‘The Regulation of Cross-Border Financial Services in the EU Internal Market.’ (2002) 8 (2) Columbia Journal of European Law 221

[2] Epp Aasaru, ”The Desirability of ’Centre of Main Interests’ as a Mechanism for Allocating Jurisdiction and Applicable Law in Cross-Border Insolvency Law’ [2011] 22 (3) European Business Law Review 349

See also: Sergiu Popovici, ‘Cross-Border Insolvency: Frame and Limit for Cross-Border Forced Execution.’ (2015) 2015 (1) Revista de Stiinte Juridice 103

[3] Anne Nielson; Mike Sigal; Karen Wagner ‘The Cross-Border Insolvency Concordat: Principles to Facilitate the Resolution of International Insolvencies.’ (1996) 70 (4) American Bankruptcy Law Journal 533

[4] ‘Council Regulation (EC) No 1346/2000 on Insolvency Proceedings.’ (2000) 5 (3) Uniform Law Review 534

[5] Alexander J Belohlávek, ‘Center of main interest (COMI) and jurisdiction of national courts in insolvency matters (insolvency status) ‘ [2008] 50 (2) International Journal of Law and Management 53

[6] Michel Menjucq; Reinhard Dammann ‘Regulation No 1346/2000 on Insolvency Proceedings: Facing the Companies Group Phenomenon.’ (2008) 9 (2) Business Law International 145

[7] Tomas Moravec; Jan Pastorcak; Petr Valenta, ‘European Regulation of Insolvency Status in the Hybrid Proceeding.’ (2015) 12 (5) US-China Law Review 455

[8] Kathy Stones, ‘Final Wording – Recast Regulation on Insolvency 2015/848 published today’ (LexisNexis, June 5, 2015) <https://blogs.lexisnexis.co.uk/randi/final-wording-recast-regulation-on-insolvency/> accessed 1 September 2018

[9] Ulrich Drobnig, ‘Secured Credit in International Insolvency Proceedings.’ (1998) 33 (1) Texas International Law Journal 53

[10] Andrew Wilkinson; Tony Horspool; Ian McKim, ‘The Case for Unifying the EU’s Insolvency Laws.’ (2005) 24 (7) International Financial Law Review 49

See also: Slk-law, ‘Insolvency Laws in Germany, UK and the US – A Comparative Law Analysis for Trade Creditors'(Slk-law.com, 2013) 

<https://www.slk-law.com/portalresource/DHC.Comparative%20Analysis%20of%20Insolvency%20Laws%20of%20US-UK-Germany> accessed 1 September 2018

[11] Horst Eidenmuller, ‘Abuse of Law in the Context of European Insolvency Law.’ (2009) 6 (1) European Company and Financial Law Review 1

[12] Sarah Paterson, ‘Insolvency Law, Restructuring Law and Modern Financial Markets, Policy Briefing 8 (LSE Law Policy Briefing Series, 2015)

<http://eprints.lse.ac.uk/64050/1/Policy%20Briefing%208_20152.pdf> accessed 7 September 2018

[13] Beatrice Mihaela Moraru; Diab Moh’d Diab Hasanin, ‘The Center of Main Interests of the Debtor in the Insolvency Proceedings at the European Union Level Differences between the EU Regulation No. 1346/29 05.2000 and EU Regulation No. 848/20.5.2015.’ (2017) 7 (Special Issue) Juridical Tribune 164

[14] Mark Arnold, ‘Truth or Illusion? COMI Migration and Forum Shopping under the EUI Insolvency Regulation ‘[2013] 14 (3) Business Law International 245

[15] Alexander J Belohlávek, ‘Center of main interest (COMI) and jurisdiction of national courts in insolvency matters (insolvency status) ‘ [2008] 50 (2) International Journal of Law and Management 53

[16] Gabriela Fierbinteanu, ‘ Amending Regulation (EC) No1346/2000 On Insolvency Proceedings – Solving Deficiencies or Attempt to Rescue Companies in Difficulty? ‘ [2013] XX (2) Lex Et Scientia 8.

[17] Bob Wessels, ‘The Place of the Registered Office of a Company: a Cornerstone in the Application of the EC Insolvency Regulation’ ‘ [2006] 3 (4) European Company Law 183

[18] Recita 13, Council Regulation (EC) No 1346/2000 on Insolvency Proceedings [2000]

See also: Bob Wessels, ”The Ongoing Struggle of Multinational Groups of Companies under the EC Insolvency Regulation’ ‘ [2009] 6 (4) European Company Law 169

[19] ibid

[20] Epp Aasaru, ”The Desirability of ’Centre of Main Interests’ as a Mechanism for Allocating Jurisdiction and Applicable Law in Cross-Border Insolvency Law’ [2011] 22 (3) European Business Law Review 349

[21] Eurofood IFSC Ltd, Re (C-341/04) [2006] ECR I-3813, [2006] 3 WLR 309

[22] Samuel L. Bufford, ‘Center of Main Interests, International Insolvency Case Venue, and Equality of Arms: The Eurofood Decision of the European Court of Justice.’ (2007) 27 (2) Northwestern Journal of International Law & Business 351, 385

[23] Thomas Bachner, ‘The Battle over Jurisdiction in European Insolvency Law – ECJ 252006, C-341/04 (Eurofood)’ [2006] 3 (3) European Company and Financial Law Review 310

[24] Marek Szydło, ‘The Notion of Comi in European Insolvency Law ‘ [2009] 20 (5) European Business Law Review 747

See also: Karsten Engsig Sørensen, ‘Groups of Companies in the Case Law of the Court of Justice of the European Union’ [2016] 27 (3) European Business Law Review 409

[25] Adrian Cohen; Sara Tapinekis, ‘The Location of Letterbox Company’s Registered Office is Not Its COMI.’ (2008) 2 (5) Law and Financial Markets Review 411

[26] Thomas Biermeyer, ‘Case C-396/09 Interedil Srl, Judgment of the Court of 20 October 2011, Not Yet Reported Court Guidance as to the COMI Concept in Cross-Border Insolvency Proceedings.’ (2011) 18 (4) Maastricht Journal of European and Comparative Law 581

[27] Samuel L. Bufford, ‘Center of Main Interests, International Insolvency Case Venue, and Equality of Arms: The Eurofood Decision of the European Court of Justice.’ (2007) 27 (2) Northwestern Journal of International Law & Business 351, 385

[28] Diana Ungureanu, ‘The Centre of the Debtor’s Main Interests, an Autonomous Concept in the Case-Law of the Court of Luxembourg.’ (2009) 2009 (1) Revista Romana de Drept Comunitar 80

[29] UNCITRAL, ‘Note By The Secretariat On The Interpretation And Application Of Selected Concepts Of The Uncitral Model Law On Insolvency Law: Cross-Border Insolvency Relating To Centre Of Main Interests (Comi)’ [2011] 42 (1) United Nations Commission On International Trade Law 1071

[30] Arnold M, ‘Truth or Illusion? COMI Migration and Forum Shopping under the EUI Insolvency Regulation ‘[2013] 14 (3) Business Law International 248

[31] Michel Menjucq, ‘EC-Regulation No 1346/2000 on Insolvency Proceedings and Groups of Companies.’ (2008) 5 (2) European Company and Financial Law Review 135

[32] Jonesday ‘Understanding “Centre of Main Interests” Where Are We?’ (Jonesday, October 2007) <https://www.jonesday.com/understanding-centre-of-main-interests-where-are-we/#> accessed 3 September 2018

[33] Interedil Srl (In Liquidation) v Fallimento Interedil Srl (C-396/09) [2011] EU 671

[34] Stefanie Slapke, ‘Cross-border insolvency: The European Court of Justice on determining the centre of main interests’ (GvW, April 2012) <http://www.gvw.com/aktuelles/newsletter/gvw-international/april-2012/cross-border-insolvency-the-european-court-of-justice-on-determining-the-centre-of-main-interests.html>accessed 5 September 2018

[35] Alexander J Belohlávek, ‘Center of main interest (COMI) and jurisdiction of national courts in insolvency matters (insolvency status) ‘ [2008] 50 (2) International Journal of Law and Management 53, 65

[36] Roelf Jakob de Weijs, Martijn Breeman, ‘Comi-Migration: Use of Abuse of European Insolvency Law ‘ [2014] 11 (4) European Company and Financial Law Review 495

[37] Jennifer Wheater, COMI Migration and UK and EU Corporate Tax.’ (2013) 14 (3) Business Law International 261, 265

See also: J. Weideman; A. L. Stander, European and American Perspectives on the Choice of Law regarding Cross-Border Insolvencies on Multinational Corporations – Suggestions for South Africa.’ (2012) 15 (5) Potchefstroom Electronic Law Journal 132

[38] Aaron M. Kaufman, ‘The European Union Goes Comi-Tose: Hazards of Harmonizing Corporate Insolvency Laws in the Global Economy.’ (2007) 29 (3) Houston Journal of International Law 625, 633

[39] Agata Adamczyk, ‘Insolvency of an EU Company May be Declared by a Court of Another Member State.’ (2009) 2 (2) Ankara Bar Review, 33

[40] ibid

[41] Bob Wessels, ‘The Ongoing Struggle of Multinational Groups of Companies under the EC Insolvency Regulation’ [2009] 6(4) European Company Law 169

[42] Robert Van Galen, ‘The Recast Insolvency Regulation and groups of companies’ [2015] 16(2) ERA Forum 241, 242

[43] Michel Menjucq, ‘EC-Regulation No 1346/2000 on Insolvency Proceedings and Groups of Companies.’ (2008) 5 (2) European Company and Financial Law Review 135

[44] Marek Szydło, ‘The Notion of COMI in European Insolvency Law’ [2009] 20(5) European Business Law Review 747

[45] Bob Wessels, ‘The Ongoing Struggle of Multinational Groups of Companies under the EC Insolvency Regulation’ [2009] 6(4) European Company Law 169

[46] Thomas Bachner, ‘The Battle over Jurisdiction in European Insolvency Law’ [2006] 3 (3) European Company and Financial Law Review 310

[47] Kathy Stones, ‘Eurofood Leaves Much Unanswered.’ (2006) 25(8) International Financial Law Review 10

[48] Michel Menjucq, ‘EC-Regulation No 1346/2000 on Insolvency Proceedings and Groups of Companies.’ (2008) 5 (2) European Company and Financial Law Review 135, 141

[49] ibid

[50] Flaminia Starc-Meclejan, ‘Groups of Companies and Environmental Liability Confronting.’ (2013) 2(1) Perspectives of Business Law Journal 234

[51] Bob Wessels, ‘The Ongoing Struggle of Multinational Groups of Companies under the EC Insolvency Regulation’ [2009] 6(4) European Company Law 169

[52] Marek Szydło, ‘The Notion of COMI in European Insolvency Law’ [2009] 20(5) European Business Law Review 747

[53] Thomas Biermeyer, ‘Case C-396/09 Interedil Srl, Judgment of the Court of 20 October 2011, Not Yet Reported Court Guidance as to the COMI Concept in Cross-Border Insolvency Proceedings.’ (2011) 18(4) Maastricht Journal of European and Comparative Law 581

[54] ibid

[55] Gerard McCormack, ‘Reconstructing European Insolvency Law – Putting in Place a New Paradigm.’ (2010) 30(1) Legal Studies 126, 132

[56] Roelf Jakob De Weijs and Martijn Breeman, ‘Comi-Migration: Use or Abuse of European Insolvency Law? Amsterdam Law School Legal Studies Research Paper No. 2013-38 ‘(SSRN, 2013) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291405> accessed 8 September 2018

[57] ibid

[58] Horst Eidenmuller, ‘Abuse of Law in the Context of European Insolvency Law.’ (2009) 6 (1) European Company and Financial Law Review 1, 13

[59] Uwe Goetker and Georgia Quenby, ‘The Migration.’ (2007) 26(9) International Financial Law Review 48

[60] Brian Cain, ‘Cross Border Restructuring: Choosing the Right Strategy.’ (2009) 5(5) Journal of Bankruptcy Law 427

[61] Sean E Story, ‘Cross-Border Insolvency: A Comparative Analysis.’ (2015) 32(2) Arizona Journal of International and Comparative Law 431, 448

[62]Riaz Janjuah, ‘Court Allows Change of COMI to Bolster Cross-Border Group Restructuring’ (International Law Office, 3 October 2008) 

<https://www.internationallawoffice.com/Newsletters/Insolvency-Restructuring/Germany/Freshfields-Bruckhaus-Deringer-LLP/Court-Allows-Change-of-COMI-to-Bolster-Cross-Border-Group-Restructuring#> accessed 11 September 2018

[63] Wessels B, ”The Ongoing Struggle of Multinational Groups of Companies under the EC Insolvency Regulation’ ‘ [2009] 6 (4) European Company Law 169, 170

[64] ibid

[65] Bo Xie, Comparative Insolvency Law: The Pre-pack Approach in Corporate Rescue (Edward Elgar Publishing 2016) 279

[66] Horst Eidenmuller, ‘Abuse of Law in the Context of European Insolvency Law.’ (2009) 6 (1) European Company and Financial Law Review 1

[67] BenQ Mobile Holdings B.V. [2008] B.C.C. 489

[68] Weideman JJ and Stander AA, ‘European and American Perspectives on the Choice of Law regarding Cross-Border Insolvencies on Multinational Corporations – Suggestions for South Africa.’ (2012) 15(5) Potchefstroom Electronic Law Journal 132, 193

[69] Epp Aasaru, ”The Desirability of ’Centre of Main Interests’ as a Mechanism for Allocating Jurisdiction and Applicable Law in Cross-Border Insolvency Law’ [2011] 22 (3) European Business Law Review 349, 368

[70] Horst Eidenmuller, ‘Abuse of Law in the Context of European Insolvency Law.’ (2009) 6 (1) European Company and Financial Law Review 1, 16

[71] Gerard McCormack, ‘Reconstructing European Insolvency Law – Putting in Place a New Paradigm.’ (2010) 30(1) Legal Studies 126

[72] Ibid 132

[73] Gerard McCormack, ‘Jurisdictional Competition and Forum Shopping in Insolvency Proceedings.’ (2009) 68(1) Cambridge Law Journal 169, 191

[74] Alexandra C. C. Ragan, ‘COMI Strikes a Discordant Note: Why U.S. Courts are Not in Complete Harmony despite Chapter 15 Directives.’ (2010) 27(1) Emory Bankruptcy Developments Journal 117, 136

[75] Marta Requejo Isidro, ‘Judicial Cooperation in Cross-Border Insolvency in the Proposed Regulation of the European Parliament and of the Council Amending Regulation (EC) No 1346/2000 on Insolvency Proceedings, (Summary).’ (2013) 13 Anuario Espanol de Derecho Internacional Privado 217, 218

[76] Dubravka Aksamovic, ‘EU Insolvency Law-New Recast Regulation on Insolvency Proceedings.’ (2017) 1 EU and Comparative Law Issues and Challenges Series 69, 70

[77] Article 92, Regulation (EU) No 2015/848 of the European Parliament and of the Council on insolvency proceedings (Recast) [2015]

[78] Article 92 (b), Regulation (EU) No 2015/848 of the European Parliament and of the Council on insolvency proceedings (Recast) [2015]

[79] Ibid, Article 92 (c)

[80] Gabriela Fierbinţeanu, ‘A New Approach in Cross Border Cases – Regulation (EU) No 2015/848 of the European Parliament and of The Council Of 20 May 2015 on Insolvency Proceedings (Recast)?’ [2017] 7 Challenges of The Knowledge Society 227

[81] Moraru BM; Hasanin DMD, ‘The Center of Main Interests of the Debtor in the Insolvency Proceedings at the European Union Level Differences between the EU Regulation No. 1346/29 05.2000 and EU Regulation No. 848/20.5.2015.’ (2017) 7 (Special Issue) Juridical Tribune 164, 167

[82] Ibid, Article 3 (1) Para. 1

[83] Moraru BM; Hasanin DMD (n81)

[84] ibid

[85] Article 3 (1), Para. 2, Regulation (EU) No 2015/848 of the European Parliament and of the Council on insolvency proceedings (Recast) [2015]

[86] Dubravka Aksamovic, ‘EU Insolvency Law-New Recast Regulation on Insolvency Proceedings.’ (2017) 1 EU and Comparative Law Issues and Challenges Series 69, 91

[87] Marek Szydło, ‘Prevention of Forum Shopping in European Insolvency Law’ [2010] 11 (2) European Business Organization Law Review 253

[88] Gerard McCormack, ‘Something Old, Something New: Recasting the European Insolvency Regulation'[2016] 79(1) The Modern Law Review 121, 122

[89] Kathy Stones, ‘Final Wording – Recast Regulation on Insolvency 2015/848 published today’ (LexisNexis, June 5, 2015) <https://blogs.lexisnexis.co.uk/randi/final-wording-recast-regulation-on-insolvency/> accessed 10 September 2018

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