CEU Electronic Theses and Dissertations, 2022
| Author | Feher, Lili Hanna |
|---|---|
| Title | Forum Shopping In Cross-Border Insolvency Cases - Examining The Role Of Comi And The Desirability Of England And Wales As A Forum- |
| Summary | The European single market has allowed businesses to freely and with relative ease expand their presence, conduct commercial activities, and hold assets across EU Member States.1 When such companies become insolvent, the ensuing proceedings must grapple with the problem of the presence of assets and creditors across different jurisdictions. The European Insolvency Regulation2 was adopted to ease this process by providing a legislative framework for handling cross-border insolvency cases3 . Importantly, the Regulation adopts the “Centre of Main Interest” (henceforth referred to as COMI) rule to determine which member state has jurisdiction over insolvency proceedings that affect creditors and assets from more than one jurisdiction. COMI is not fully defined in the Regulation itself, while some presumptions that point in favour of a specific jurisdiction are included, COMI is a concept that was largely developed and shaped by the Court of Justice of the European Union4 . The forum of insolvency proceedings matters, because the laws that govern the proceedings are the laws of the country that has jurisdiction over the issue5 (i.e., the lex fori). Applicable law makes the question of jurisdiction paramount, and consequently, gives COMI its key importance. In the past, there have been numerous cases where insolvent parties have manipulated the COMI rule to their benefit, allowing them to select a more favourable jurisdiction for the insolvency proceedings to be conducted6 . This is a phenomenon called forum shopping, a process whereby a party to a legal action manipulates rules of jurisdiction to gain access to a forum perceived as more advantageous7 . As a result, in 2017, certain changes were adopted by the recast European Insolvency Regulation8 to curtail forum shopping9 . This thesis consists of two main parts; the first half gives an overview of the content of COMI and the evolution of European insolvency law to answer the questions: how is forum shopping executed and what are the driving factors behind it. This entails an inquiry into the factors that make a country’s insolvency regime attractive, an analysis that was in part informed by empirical information collected from insolvency practitioners. The second half examines the desirability of the jurisdiction of England and Wales, paying special attention to the effects of Brexit and advancements made by EU law in the field of restructuring. Through the case study of England and Wales, this thesis outlines the factors that make a jurisdiction appealing, and the factors that harm a forum’s competitivity on an EU level. The analysis will lead to the conclusions that due to Brexit and some key changes made to EU law, England and Wales is no longer an attractive forum for insolvency proceedings for EU actors. |
| Supervisor | Tajti, Tibor |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2022/feher_lili.pdf |
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