Analysis of the model of regulation of cross-border insolvency under German law

Abstract

The article is devoted to the analysis of the model of regulation of cross-border insolvency under German law. The purpose of the article is the scientific understanding and identification of the characteristic features of the model of regulation of cross-border insolvency under German law.

The presence of dualism in the legal regulation of the cross-border insolvency procedure under German law for EU member states and non-EU member states has been ascertained.

It is argued that there are five types of proceedings in the cross-border insolvency procedure under the provisions of the German insolvency Statute 1) main proceedings; 2) secondary proceedings; 3) domestic secondary proceedings; 4) foreign proceedings; 5) territorial proceedings), as well as the absence of a legally established definition of these concepts.

The absence of the concept of the debtor’s COMI was found in the provisions of the German insolvency Statute, even despite the fact that such a concept exists in the regulatory act itself, such concept does not fall under the classical understanding of cross-border insolvency, because it concerns the insolvency of a group of companies. The similarity of the provisions of the German insolvency Statute regarding the regulation of cross-border insolvency with the provisions of the predecessor acts of the 19th century regarding the same issue, as well as the exploitation of even similar terminology in relation to territorial proceedings, is proven. The almost complete impossibility of universalism in accordance to the provisions of the German insolvency Statute on cross-border insolvency has been proven, despite the presence, at first glance, of an environment favorable to the implementation of the mentioned theory.

It is substantiated that the modern procedure of cross-border insolvency in Germany for third countries that are not members of the EU embodies the theory of territorialism. It has been proven that the existing territorial ideology of cross-border insolvency in modern Germany can be traced back to the existence of the Konkursordnung of 1877.

By virtue of improving the legislation of Ukraine on bankruptcy, it is proposed to add a new Book to the Bankruptcy Code of Ukraine, which would contain the regulation of the cross-border insolvency procedure.