International insolvency law – basic principles within the European union

1. International insolvency law – basic principles within the European union

2. The aim of international insolvency law – the reasons for its establishment • Insolvency may be generally understood as situation when the debtor has not sufficient financial resources to comply with his obligations (is not able to pay his debts). • Each national law has its own regulation of this situation – with the aim of redistribution of available debor‘s resources to his creditors in such way that each creditor gains at least a part of his receivable. • A problem may arise when the debtor has his assets not only in one country --- there are big differences between the national regulations and to cover the debor‘s assets in another country by the effects of insolvency proceedings in one country may cause big troubles (may be incompatible with the national law of the other state.)

3. The aims of international insolvency law • The international insolvency law shall react upon the situations when there is an insolvent debtor having assets in more countries. • The aim is to set down rules which assure that no debtor‘s assets will be left outside of insolvency proceedings (i.e. all assets will be used to settle the claims of his creditors.) • The international insolvency law is based upon the principle of universality – the insolvency proceedings affect all the assets of the debtor regardless the place where it is situated. BUT !!! To affect assets of the territory of a state it requires a decision issued within the state‘s power (authority) – applying the principle of universality shall mean that one member state would be allowed to exercise his powers on the territory of another state • Establishment of so called principle of controlled universality – there shall exist one insolvency proceeding (so called primary insolvency proceeding) which affects all the assets of the debtor. Beside this primary proceeding there may exist secondary proceeding in another state which may affect only the assets situated on the territory of that state and support the primary proceeding.

4. The efforts of unification of international insolvency law • 1997 – UNCITRAL Commission prepared the Model law on cross-border insolvency. • This law regulates especially the position of the bankruptcy trustee, the recognition of the insolvency proceeding in foreigner country. • Under this law insolvency proceeding in one state has no direct effects in another country – sets down conditions for international legal aid. • Since 1990 there exists European convection on certain international aspects of bankruptcy – it is opened for the signature, but the ratification procedures are very slow, the convention has not entered into force yet. (no complex regulation, only ceratain aspects are regulated).

5. The historical background of the Regulation no 1346/2000 • Before the signature of the Amsterdam Treaty, there was created a draft of a convention concerning the unification of insolvency proceedings in the EU. • The convention was not signed – the text was transferred into a regulation – Council Regulation no 1346/2000 on insolvency proceedings.

6. Regulation on insolvency proceedings General characteristics • Entered into force – 31.5.2002. • For all Member states with the exception of Denmark. • Is based upon the principle of controlled universality, but is different from the UNCITRAL Model law.

7. Regulation on insolvency proceedings General characteristics • Contains: • Insolvency procedural law – regulates the jurisdiction for insolvency proceedings, and some aspects of their course. • Insolvency substantial law – regulates e.g. the position of „liquidator“. • Insolvency conflict rules – regulates the law applicable for the concrete proceedings.

8. Regulation on insolvency proceedings – scope of application • Applies to collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator. • It does not apply to insolvency proceedings concerning undertakings, credit institutions, investment undertakings which provide services involving the holding of funds or securities for third parties or to collective investment unduertakings.

9. Regulation on insolvency proceedings – important notions • Insolvency proceedings – collective proceedings – listed in the Annex A. • Liquidator – any person of body whose function is to administer or liquidate assets of which the debtor has been divested or to supervise the administration of his affairs (concrete persons – listed in Annex C)

10. Regulation on insolvency proceedings – the principle of controlled universality • The jurisdiction to open insolvency proceeding have the courts of the Member state within the territory of which the centre of a debtor‘s main interests is situated – see also judgment Judgment of the Court (Grand Chamber) of 2 May 2006. Eurofood IFSC Ltd. • In the case of company or legal person – the place of main interests is the place of the registered office (in absence of proof to the contrary). • It is the so called „main insolvency proceeding“ – with the effects on the assets of the debtor situated in another Member state as well. • The liquidator appointed in this proceeding may exercise his powers in another Member state as well as long as no other proceeding has not been opened there.

11. Regulation on insolvency proceedings – the principle of controlled universality • Court of another Member state than where the centre of debtor‘s main interests is situated shall have jurisdiction to open insolvency proceeding against the same debtor only if he possesses an establishment (any place of operation where he carries out o non-transitory economic activity with human means and goods) within the territory of that Member state. • It is so called secondary insolvency proceeding. • The effects shall be restricted to the assets of the debtor situated in the territory of that Member state.

12. Regulation on insolvency proceedings - recognition • Article 16 of the Regulation sets down the „principle“ – any judgment opening insolvency proceeding issued by court having jurisdiction upon this Regulation shall be recognised in all other Member states from the time it becomes effective in the State of opening proceedings. • This does not mean that a secondary insolvency proceeding may not be opened.

13. Regulation on insolvency proceedings – the applicable law • The law applicable to main insolvency proceeding and its effect shall be the law of the Member state within the territory of which such proceeding was opened. • The applicable law to the secondary insolvency proceeding is the law of the Member state within the territory of which the secondary proceeding was opened.