COMI Confusion: COMI Fusion?Selina Backus,1 Nottingham and Nijmegen Law Schools, UK and the Netherlands
In truth, it cannot be denied that there is a clear link between the UNCITRAL Model Law on Cross-Border Insolvency 1997 ('Model Law') and the European Insolvency Regulation 2000 ('EIR') given that various central Model Law concepts, in particular the concept of the 'centre of main interests' ('COMI'), derived from the EIRís predecessor, the European Bankruptcy Convention ('EBC'). However, while both instruments use the interpretation of the COMI to assess whether the proceeding concerned is to be qualified as a 'main proceeding', there are considerable differences that need to be kept in mind when determining the COMI under the Model Law. It is these differences that this article seeks to address, its primary aim being to clarify how the COMI is determined under the Model Law, particularly in comparison with the approach taken under the EIR.
Of essential importance is the difference is nature and scope of the two instruments: while the Model Law has a global vocation, the EIRís remit is limited to the European Unionís Member States. Additionally, where the EIR is directly applicable in all Member States, countries are free to decide when and how to implement the Model Law. Consequently, the operation of the Model Law will vary (to a smaller or larger extent) between each enacting State, the result of which has been referred to as 'chaotic'. Nevertheless, the Model Law provides for a mandate which states that when it comes to the interpretation of the Model Law 'regard is to be had to its international origin and the need to promote uniformity in its application,' making legal comparison an imperative to its optimal functioning. This article will provide a brief introduction to the Model Law and EIR, following which it will elaborate on the COMI concept under the EIR. An insight into the functioning of the Model Lawís COMI will then be provided by analysis of how the concept has been enacted and interpreted in two countries, the US and England. Finally, the Model Law will be re-evaluated in light of the findings in the relevant sections below, on the basis of which this article will stipulate that the COMI contexts of the EIR and the Model Law are not aligned. The essential argument is that, as a consequence of this, a similar interpretation of the COMI in both instruments is hard to achieve.