Article preview
The European Insolvency Case Register:
In late 2003 a number of insolvency professionals at INSOL Europe’s annual conference in Cork saw the need to capture developments, particularly in case law, relating to the EC Regulation on Insolvency Proceedings 2000 (No. 1346/2000) (‘the Regulation’), which had by then been in force for rather less than 18 months. With the EU’s expansion from 15 to 25 member states only 6 months away and no central mechanism in existence for monitoring case law arising from this pan-European legislation, a recognition that INSOL Europe’s members - 800 insolvency professionals practising in all EU Member States - were ideally placed to source such information gave rise to the birth of the Case Register. As the leading European organization for restructuring and insolvency professionals with an interest in cross-border matters, which includes an academic wing and works closely with the European Union, INSOL Europe saw significant value in promoting the Case Register as an internet database, accessible to all. This article illustrates the Case Register by reference to the Regulation and seeks to encourage its use and support.
Some jurisdictions such as the UK have a strong tradition of reporting cases, but even here one of the early leading cases on Article 3(1) (centre of main interests (‘COMI’)), re Enron Directo, 4 July 2002 was unreported and no transcript of the judgement was produced. Other jurisdictions’ approaches to written judgements and reporting vary widely. Whereas common law jurisdictions such as the UK and Ireland are clearly based on precedent, even the most strict civil law jurisdictions in practice use precedents, particularly from higher courts, to interpret the law. Between Member States precedents are not binding, although it has been suggested, wryly, in some quarters that the German courts learnt from the British in Daisytek and applied the lesson against the Austrians in Hettlage.
The European Court of Justice (‘ECJ’) is the ultimate court to which questions on interpretation of the Regulation may be referred by the supreme court of a Member State. The first case so referred was Eurofoods, a Parmalat subsidiary where both the Irish and Italian courts had sought to open main proceedings (which seems to have been less a case of the Italians learning from the Germans and more a question of a breakdown of communications between Parma and Dublin, to put it politely).
In February 2004, some 37 out of 40 identified Regulation cases analysed related to COMI, which proportion has subsequently reduced to some 46 out of 73, but still highlights the difficulties of Article 3.
Copyright 2006 Chase Cambria Company (Publishing) Limited. All rights reserved.