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The unavoidable persistence of forum shopping in the Insolvency Regulation

mercoledì 27 febbraio, ore 14.00 - Aula 7, ala est

Autore:  Federico Maria Mucciarelli (Università degli studi di Modena e Reggio Emilia)

One of the goals of the Insolvency Regulation, confirmed by recent reform proposals of the European Parliament and the Commission, is to limit forum shopping. The real world, however, looks quite different, as forum shopping is increasingly common in the EU. A company’s Centre of Main Interests is presumed to coincide with its registered office and, if a company manages to relocate it abroad before filing for insolvency, insolvency law of the new jurisdiction applies. Furthermore, according to ECJ case law, the reference date to assess the insolvency competence is the filing and if a company actually transfers its headquarter together with its registered office in a way ascertainable by third parties the presumption that its COMI coincides with the registered office can not be rebutted. Creditors’ protection against opportunistic forum shopping, therefore, relies only upon the criterion that a company’s COMI must be ascertainable by third parties. This criterion, however, as applied by domestic case law and the ECJ, does not take into account the belief of pre-existing creditors: If a company relocates headquarter alongside its registered office and makes this transfer public and “ascertainable” for future potential creditors, no evidence whatsoever can be provided that its COMI is still in the State of origin. Forum shopping, therefore, has become an unavoidable component of EU insolvency law.

[Ultimo aggiornamento: 28/02/2013 14:37:47]