European Cross-Border Insolvency Law by Reinhard Bork download in ePub, pdf, iPad
Conclusion The Recast Regulation has sought to deal with some of the issues exposed by seeing the original Regulation in action. No action should be taken unless instructed by the examiner. The aim of such coordination is to produce a generally positive impact for the creditors. This applies in particular to the rank and priority of claims.
The insolvency practitioner in the main proceedings should not be able to realise or relocate, in an abusive manner, assets situated in the member state where an establishment is located. However, if they initially object to inclusion then they can change their minds and subsequently participate. Although such claims have to be recognised, it is not clear what priority they should be given. The updated provisions on centre of main interest implement the existing case law of the European Court of Justice in an attempt to prevent abusive forum shopping. The Model Law aims to encourage recognition of foreign proceedings and cooperation between jurisdictions.
There are also practical problems in cooperation between national courts and the flow of information between them. The cost of the proceedings should not outweigh the advantages.
For instance, English insolvency law is considered to be predictable, flexible and to prioritise reorganisation, whereas continental insolvency laws are considered to be more punitive of the debtor. Those proceedings can only be used to deal with assets in that country. October Once the official receiver is satisfied that insolvency proceedings have been opened correctly the official receiver must administer the estate in the usual way. Currently it is from Germany that most nationals are seeking the protection of courts in England and Wales.
With regard to recognition of judgements, foreign legal opinions are likely to still be necessary. However, there are a number of exceptions. The Regulation does not, therefore, cover less far-reaching procedures, such as adjustment of debt or reorganisation. The outcome for creditors would differ between jurisdictions.
There are also rules regarding language requirements of the notice. The various insolvency practitioners and the courts involved should be under an obligation to cooperate and communicate with each other. For the purposes of giving the undertaking, the assets and rights located in the member state where the debtor has an establishment should form a sub-category of the insolvency estate. However, from an early stage there have been piecemeal attempts to develop cross-border cooperation in insolvency matters.
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