We are delighted to present this CMS report which provides an overview of the interpretation by courts in 12 jurisdictions of the ‘centre of main interest’ (COMI). The EC Insolvency Regulation (EIR) [Council Regulation (EC) No. 1346 / 2000 on insolvency proceedings] stipulates which national law is applicable if insolvency proceedings are opened in a relevant EU jurisdiction. The drafting of Article 3 para 1 of the EIR is such that, under certain circumstances, it allows for the possibility of choosing the national insolvency law that will apply by changing the COMI of a subject debtor. This is also referred to as forum shopping.
Which national law is applicable can be critical in determining the opportunities to deploy a variety of corporate restructuring methodologies. The interpretations of Article 3 para 1 by national courts differ in the various CMS jurisdictions, in some cases significantly.
During the CMS Restructuring & Insolvency Associates Training, which took place in 2012 in Brussels, the main topic was to identify and compare the interpretation of the COMI in different European countries. This report provides an overview of interpretations in 12 jurisdictions!
In the first part of this report a general introduction is given on forum shopping and the EIR with focus on the interpretation of the European Court of Justice (ECJ) with respect to the COMI principle.
Throughout this report we seek to draw your attention to the varied incidences of forum shopping opportunities that may arise and the complications this may cause. If you have any questions arising out of any of the issues contained in this report, please contact us.
The information contained in this guide is of a general nature and is not intended to be a full legal review of the topics covered and cannot be relied upon for specific advice. We accept no responsibility for any acts or omissions as a result of the information contained in this guide. If you would like to receive specific legal advice, please contact your usual CMS attorney.
The information in this guide is accurate as at December 2012 but please keep in mind that this is a developing area.