The applicable law and the “centre of main interests” in cross-border insolvency: a comparison of the legal regulation in the uncitral model law on cross-border insolvency 1997 and the EU regulations 2000 and 2015 on insolvency proceedings

Abstract

The article is devoted to the study of the common and distinctive features of the legal regulation of the applicable law and the “Center of Main Interests” in the EU Council Regulation No. 1346/2000 of 29 May 2000 on insolvency proceedings (hereinafter – the EU Regulation 2000), the UNCITRAL Model Law on Cross-Border Insolvency of 1997 (hereinafter – the Model Law) and EU Regulation 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (hereinafter – the 2015 EU Regulation). Albeit the provisions of the EU Regulation 2000 have lost their legal force, they are important for scientific and theoretical research in order to better demonstrate both the evolution of the intentions of the EU countries on the example of a comparison with the following act, and to better understand the state of affairs that existed at the beginning of 2000s on the European continent in a more “fair” time frame for the Model Law in comparison.

The purpose of the article is to identify common and distinctive features in the legal regulation of the applicable law and the “Center of Main Interests” according to the Model Law, EU Regulation 2000 and EU Regulation 2015. It is emphasized that the legal regulation of the applicable law contained in the EU Regulations 2000 and 2015 once again proves the affiliation of these acts to the theory of territorial universalism.

Based on the results of the research, the author concludes that summarizing the analysis of the three normative acts, it should be noted that the EU Regulations 2000 and 2015 contain a completely different legal mechanism for regulating the cross-border insolvency procedure compared to the Model Law, which, among other things, should be connected with different legal nature of these acts. The provisions of the EU Regulation 2015 regarding the determination of the debtor’s center of main interests are much more developed than the provisions of other comparable regulatory acts. The fact that the provisions of the EU Regulation 2000 regarding the consideration of the subjective factor such is the possibility of awareness of third parties in order to determine the center of main interests find their place in the EU Regulation 2015, once again indicates the appropriateness of such regulation.