Vol 19 (2022) - Issue 6

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Judicial Test of International Jurisdiction under the European Insolvency Regulation

Synopsis
The decision to open main insolvency proceedings under the European Insolvency Regulation (recast) has fundamental consequences in all Member States. It determines that these proceedings and their effects are recognised in other Member States, that an appointed insolvency practitioner may exercise all the powers conferred on it in the other Member States, that the law applicable in these states in principle is the law of the state in which the opening decision is made, etc. The core principles of the Insolvency Regulation should be protected by a system that should limit manipulation efforts regarding the 'centre of main interest' (COMI) by disclosing the way in which a court comes to the conclusion that it has international jurisdiction and thus opens main insolvency proceedings. Article 4 ('Examination as to jurisdiction') and Article 5 ('Judicial review of the decision to open main insolvency proceedings') of the Regulation obliges a court to verify its international jurisdiction at its own motion and facilitates, if necessary, subsequent judicial review. In this article a brief analysis of those provisions follows.