Riassunto analitico
There are a lot of issues that may arise in case of cross border insolvency and when it occurs, the main goal is the containment of the problems. Creditors are likely to be established in different countries and common European provisions are necessary. The European Union is made up of 27 states with their own substantive insolvency laws. Therefore, it is difficult to reach a political agreement to coordinate them because of important differences. Insolvency law is not harmonised at EU level, and this can lead to several potential conflict of interest: generally, there is a significant national interest in having jurisdiction of insolvency proceedings. The EU Recast Regulation 848/2015 plays an important role because it helps to define which country has jurisdiction in case of cross border insolvency providing for general rules. It helps to answer to the following questions in order to avoid possible conflict of laws: Which country’s courts are competent? Which country’s laws should apply? Is a judgment or a decision by a judicial authority recognised and enforceable in a specific other country? The main aspects of the Recast Regulation are analysed, taking into account the important notion of COMI, the principle of universalism and territorialism and analysing the main provisions required also by the EU restructuring Directive 1023/2019. According to the principle of universality of the insolvency proceeding, the appointed receiver of the insolvent estate has the power to conduct an orderly realisation of all assets for the benefit of the creditors. However, in some cases the territorial limitations can become a problem in cases of substantive incompatibility between different insolvency regimes. The declaration of insolvency involves all areas of the debtor’s business, indeed not only the debtor’s assets but also the current contracts to which the debtor is party are affected by the liquidation procedures. The main point that will be analysed is the applicable law to pending contracts in case of cross border insolvency. The Regulation 2015/848 as the previous one, sets out the principle of applying the lex fori concursus, defined as the law of the State of the opening proceedings. It provides for special exceptions in case of specific types of contracts. In fact, if the pending contract is related to immovable property the applicable law will be the lex rei sitae, in case of employment contract, the law of the Member State applicable to that contract and finally a payment or settlement system or financial market shall be governed by the law of the Member State applicable to that system or market. In the following paper the reasons that have driven the legislator to provide for special provisions will be analysed. Finally, the fate of pending contracts according to the Italian insolvency law is examined taking into account all the special provisions and a comparison between Spanish, Irish and Italian insolvency law is made.
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