General Provisions

van Zwieten, Kristin; Ringe, Georg; Snowden, Richard; Garcimartin, Francisco Javier; Virgos, Miguel

doi:10.1093/oso/9780198727286.003.0001

- Article 1—Scope Article 1—Scope
  - Table of Contents Table of Contents
  - I. Introduction to Article 1 I. Introduction to Article 1
  - II. The Proceedings Falling Within the Scope of the EIR II. The Proceedings Falling Within the Scope of the EIR
    - A. The Exclusion of Proceedings not Appearing in Annex A A. The Exclusion of Proceedings not Appearing in Annex A
    - B. The Procedure for Making Additions to Annex A B. The Procedure for Making Additions to Annex A
    - C. The Eligibility Criteria for Making Additions to Annex A: The Description of Insolvency Proceedings in Article 1(1) C. The Eligibility Criteria for Making Additions to Annex A: The Description of Insolvency Proceedings in Article 1(1)
      - 1. ‘Public’ 1. ‘Public’
      - 2. ‘Collective’ 2. ‘Collective’
      - 3. ‘Based on Laws Relating to Insolvency’, For a Prescribed Purpose 3. ‘Based on Laws Relating to Insolvency’, For a Prescribed Purpose
      - 4. With Prescribed Effect 4. With Prescribed Effect
  - III. The Effect of the Opening of Proceedings Listed in Annex A, Including on an Interim Basis III. The Effect of the Opening of Proceedings Listed in Annex A, Including on an Interim Basis
  - IV. The Relationship Between the EIR and the Recast Brussels I Regulation IV. The Relationship Between the EIR and the Recast Brussels I Regulation
  - V. Excluded Classes of Debtor V. Excluded Classes of Debtor
  - VI. Bibliography VI. Bibliography
    - Notes
- Article 2—Definitions Article 2—Definitions
  - Table of Contents Table of Contents
  - I. Introduction I. Introduction
  - II. The 14 Terms II. The 14 Terms
    - A. ‘Collective Proceedings’ A. ‘Collective Proceedings’
    - B. ‘Collective Investment Undertakings’ B. ‘Collective Investment Undertakings’
    - C. ‘Debtor in Possession’ C. ‘Debtor in Possession’
    - D. ‘Insolvency Proceedings’ D. ‘Insolvency Proceedings’
    - E. ‘Insolvency Practitioner’ E. ‘Insolvency Practitioner’
    - F. ‘Court’ F. ‘Court’
    - G. ‘Judgment Opening Insolvency Proceedings’ G. ‘Judgment Opening Insolvency Proceedings’
    - H. ‘The Time of the Opening of Proceedings’ H. ‘The Time of the Opening of Proceedings’
    - I. ‘The Member State in which Assets are Situated’ I. ‘The Member State in which Assets are Situated’
    - J. ‘Establishment’ J. ‘Establishment’
    - K. ‘Local Creditor’ K. ‘Local Creditor’
    - L. ‘Foreign Creditor’ L. ‘Foreign Creditor’
    - M. ‘Groups of Companies’; ‘Parent Undertaking’ M. ‘Groups of Companies’; ‘Parent Undertaking’
- Article 3—International jurisdiction Article 3—International jurisdiction
  - Table of Contents Table of Contents
  - I. Introduction to Article 3 I. Introduction to Article 3
    - A. Jurisdiction in the EIR A. Jurisdiction in the EIR
    - B. Objective B. Objective
    - C. International versus Local Jurisdiction C. International versus Local Jurisdiction
    - D. ‘Court’ Jurisdiction D. ‘Court’ Jurisdiction
    - E. Cross-border Element E. Cross-border Element
    - F. Relationship to Domestic Jurisdiction Rules F. Relationship to Domestic Jurisdiction Rules
  - II. Main Insolvency Proceedings, Article 3(1) II. Main Insolvency Proceedings, Article 3(1)
    - A. The Centre of Main Interests (COMI) A. The Centre of Main Interests (COMI)
      - 1. Objective and Critique 1. Objective and Critique
      - 2. General Considerations 2. General Considerations
    - B. Companies and Legal Persons B. Companies and Legal Persons
      - 1. Companies and Legal Persons 1. Companies and Legal Persons
      - 2. Registered Office 2. Registered Office
      - 3. Operation of the Presumption 3. Operation of the Presumption
      - 4. Rebuttal of the Presumption 4. Rebuttal of the Presumption
      - 5. Relevant Concrete Criteria for Determining the COMI 5. Relevant Concrete Criteria for Determining the COMI
      - 6. COMI of Companies in Liquidation 6. COMI of Companies in Liquidation
      - 7. Relevant Point in Time and ‘Forum Shopping’ 7. Relevant Point in Time and ‘Forum Shopping’
      - 8. COMI and Corporate Groups 8. COMI and Corporate Groups
    - C. Individual Exercising an Independent Business or Professional Activity C. Individual Exercising an Independent Business or Professional Activity
      - 1. Independent Business or Professional Activity 1. Independent Business or Professional Activity
      - 2. Scope of the Presumption 2. Scope of the Presumption
      - 3. Rebuttal of the Presumption 3. Rebuttal of the Presumption
      - 4. Suspension Period 4. Suspension Period
    - D. Other Individuals D. Other Individuals
      - 1. Habitual Residence 1. Habitual Residence
      - 2. Rebuttal of the Presumption 2. Rebuttal of the Presumption
      - 3. Suspension Period 3. Suspension Period
    - E. Review of Opening Decision E. Review of Opening Decision
  - III. Secondary Insolvency Proceedings, Article 3(2) and (3) III. Secondary Insolvency Proceedings, Article 3(2) and (3)
    - A. Objectives and Problems A. Objectives and Problems
    - B. Restricting the Scope of Secondary Proceedings by the 2015 Reform B. Restricting the Scope of Secondary Proceedings by the 2015 Reform
    - C. Jurisdiction Requirements C. Jurisdiction Requirements
      - 1. COMI in the EU 1. COMI in the EU
      - 2. Main and Secondary Proceedings in Different Member States 2. Main and Secondary Proceedings in Different Member States
      - 3. Presence of an ‘Establishment’ 3. Presence of an ‘Establishment’
    - D. No Territorial Restriction of Applicants D. No Territorial Restriction of Applicants
    - E. Discretion in Opening Decision E. Discretion in Opening Decision
    - F. Scope of Secondary Insolvency Proceedings F. Scope of Secondary Insolvency Proceedings
    - G. Procedure of Secondary Insolvency Proceedings G. Procedure of Secondary Insolvency Proceedings
  - IV. Territorial Insolvency Proceedings, Article 3(4) IV. Territorial Insolvency Proceedings, Article 3(4)
    - A. Main Insolvency Proceedings cannot be Opened A. Main Insolvency Proceedings cannot be Opened
    - B. Request by Privileged Applicants B. Request by Privileged Applicants
      - 1. Specific Local Creditors 1. Specific Local Creditors
      - 2. Public Authorities 2. Public Authorities
    - C. Conversion to ‘Genuine’ Secondary Proceedings C. Conversion to ‘Genuine’ Secondary Proceedings
  - V. Conflicts in Jurisdiction V. Conflicts in Jurisdiction
    - A. Positive Jurisdictional Conflicts A. Positive Jurisdictional Conflicts
      - 1. The Priority Principle 1. The Priority Principle
      - 2. Handling Wrongly Opened Main Proceedings 2. Handling Wrongly Opened Main Proceedings
    - B. Negative Jurisdictional Conflicts B. Negative Jurisdictional Conflicts
  - IV. Bibliography IV. Bibliography
    - Notes
- Article 4—Examination as to jurisdiction Article 4—Examination as to jurisdiction
  - Table of Contents Table of Contents
  - I. Introduction to Article 4 I. Introduction to Article 4
  - II. Objective II. Objective
  - III. Court Decision, Article 4(1) III. Court Decision, Article 4(1)
    - A. Court A. Court
    - B. Request to Open Insolvency Proceedings B. Request to Open Insolvency Proceedings
    - C. Examination ex officio C. Examination ex officio
      - 1. Seeking Additional Evidence 1. Seeking Additional Evidence
      - 2. International Jurisdiction 2. International Jurisdiction
      - 3. Examination Duty and Article 3 Presumptions 3. Examination Duty and Article 3 Presumptions
    - D. Outcome of Assessment D. Outcome of Assessment
      - 1. Obligation to Specify Reasons 1. Obligation to Specify Reasons
  - IV. Decision ‘Out of Court’, Article 4(2) IV. Decision ‘Out of Court’, Article 4(2)
    - A. Out of Court A. Out of Court
    - B. Examination Obligation B. Examination Obligation
    - C. Obligation to Specify Reasons C. Obligation to Specify Reasons
  - V. Overall Assessment V. Overall Assessment
  - VI. Bibliography VI. Bibliography
    - Notes
- Article 5—Judicial review of the decision to open main insolvency proceedings Article 5—Judicial review of the decision to open main insolvency proceedings
  - Table of Contents Table of Contents
  - I. Introduction to Article 5 I. Introduction to Article 5
  - II. Objective II. Objective
  - III. Requirements for Judicial Review, Article 5(1) III. Requirements for Judicial Review, Article 5(1)
    - A. Scope of Judicial Review A. Scope of Judicial Review
    - B. Standing B. Standing
    - C. Relevant Court C. Relevant Court
    - D. Other Requirements D. Other Requirements
    - E. Consequence of Successful Challenge E. Consequence of Successful Challenge
  - IV. National Remedies Unaffected, Article 5(2) IV. National Remedies Unaffected, Article 5(2)
  - V. Bibliography V. Bibliography
    - Notes
- Article 6—Jurisdiction for actions which derive directly from the insolvency proceedings and are closely linked with them Article 6—Jurisdiction for actions which derive directly from the insolvency proceedings and are closely linked with them
  - Table of Contents Table of Contents
  - I. Introduction to Article 6 I. Introduction to Article 6
  - II. Background II. Background
  - III. Purpose and Requirements of Article 6(1) III. Purpose and Requirements of Article 6(1)
    - A. Existing Insolvency Proceedings A. Existing Insolvency Proceedings
    - B. ‘Connected Action’ Within the Scope of Article 6(1) B. ‘Connected Action’ Within the Scope of Article 6(1)
      - 1. Elements of a Definition 1. Elements of a Definition
      - 2. Actions Sufficiently Connected with Insolvency Proceedings 2. Actions Sufficiently Connected with Insolvency Proceedings
      - 3. Actions not Sufficiently Connected with Insolvency Proceedings 3. Actions not Sufficiently Connected with Insolvency Proceedings
    - C. Implications C. Implications
      - 1. Jurisdiction 1. Jurisdiction
      - 2. Exclusive or Optional Jurisdiction 2. Exclusive or Optional Jurisdiction
      - 3. Connected Actions in Multiple Insolvency Proceedings 3. Connected Actions in Multiple Insolvency Proceedings
      - 4. Applicable Law 4. Applicable Law
  - IV. Jurisdiction for Two ‘Related’ Actions, Article 6(2) and (3) IV. Jurisdiction for Two ‘Related’ Actions, Article 6(2) and (3)
  - V. Bibliography V. Bibliography
    - Notes
- Article 7—Applicable law Article 7—Applicable law
  - Table of Contents Table of Contents
  - I. Article 7(1): The General Rule I. Article 7(1): The General Rule
  - II. Article 7(2): Specific Examples II. Article 7(2): Specific Examples
    - A. Article (7)(2)(a) A. Article (7)(2)(a)
    - B. Article 7(2)(b) B. Article 7(2)(b)
    - C. Article 7(2)(c) C. Article 7(2)(c)
    - D. Article 7(2)(d) D. Article 7(2)(d)
    - E. Article 7(2)(e) E. Article 7(2)(e)
    - F. Article 7(2)(f) F. Article 7(2)(f)
    - G. Articles 7(2)(g) and (h) G. Articles 7(2)(g) and (h)
    - H. Article 7(2)(i) H. Article 7(2)(i)
    - I. Articles 7(2)(j) and (k) I. Articles 7(2)(j) and (k)
    - J. Article 7(2)(l) J. Article 7(2)(l)
    - K. Article 7(2)(m) K. Article 7(2)(m)
  - III. Questions of Characterisation III. Questions of Characterisation
  - IV. Other Exceptions to Article 7 IV. Other Exceptions to Article 7
- Article 8—Third parties’ rights in rem Article 8—Third parties’ rights in rem
  - Table of Contents Table of Contents
  - I. Introduction I. Introduction
  - II. The Structure of Article 8 II. The Structure of Article 8
  - III. The Scope of Article 8: Assets and Rights in rem III. The Scope of Article 8: Assets and Rights in rem
  - IV. Issues Concerning the Location of Assets IV. Issues Concerning the Location of Assets
  - V. Rights in rem and Reorganisation Plans V. Rights in rem and Reorganisation Plans
  - VI. Article 8(4): Rights in rem and Acts Detrimental to Creditors VI. Article 8(4): Rights in rem and Acts Detrimental to Creditors
- Article 9—Set-off Article 9—Set-off
  - Table of Contents Table of Contents
  - I. Introduction I. Introduction
  - II. The Structure of Article 9 II. The Structure of Article 9
  - III. Determination of the Applicable Law III. Determination of the Applicable Law
  - IV. Does the Applicable Law include Insolvency Rules? IV. Does the Applicable Law include Insolvency Rules?
  - V. Does the Applicable Law include the Law of Non-EU Member States? V. Does the Applicable Law include the Law of Non-EU Member States?
  - VI. Article 9(2): Set-Off and Acts Detrimental to Creditors VI. Article 9(2): Set-Off and Acts Detrimental to Creditors
- Article 10—Reservation of title Article 10—Reservation of title
  - Table of Contents Table of Contents
  - I. Introduction I. Introduction
  - II. Preliminary Questions II. Preliminary Questions
  - III. Article 10(1): Insolvency of the Purchaser III. Article 10(1): Insolvency of the Purchaser
  - IV. Article 10(2): Insolvency of the Seller IV. Article 10(2): Insolvency of the Seller
  - V. Article 10(3): Reservation of Title and Acts Detrimental to Creditors V. Article 10(3): Reservation of Title and Acts Detrimental to Creditors
- Article 11—Contracts relating to immoveable property Article 11—Contracts relating to immoveable property
  - Table of Contents Table of Contents
  - I. Introduction I. Introduction
  - II. General Observations II. General Observations
  - III. Ancillary Issues III. Ancillary Issues
  - IV. Court in the Main Insolvency Proceedings giving Consent Required by the lex situs IV. Court in the Main Insolvency Proceedings giving Consent Required by the lex situs
- Article 12—Payment systems and financial markets Article 12—Payment systems and financial markets
  - Table of Contents Table of Contents
  - I. Introduction to Article 12 I. Introduction to Article 12
  - II. Definitions of Payment or Settlement Systems and Financial Markets II. Definitions of Payment or Settlement Systems and Financial Markets
  - III. Consequences of the Application of Article 12 III. Consequences of the Application of Article 12
  - IV. Relationship between Article 12 and Article 8 IV. Relationship between Article 12 and Article 8
  - V. Claw-back Rules V. Claw-back Rules
  - VI. Bibliography VI. Bibliography
    - Notes
- Article 13—Contracts of employment Article 13—Contracts of employment
  - Table of Contents Table of Contents
  - I. Introduction to Article 13 I. Introduction to Article 13
  - II. Conditions of Application of Article 13 II. Conditions of Application of Article 13
  - III. Consequences of the Application of Article 13 III. Consequences of the Application of Article 13
  - IV. The Effect of Article 13(2) IV. The Effect of Article 13(2)
- Article 14—Effects on rights subject to registration Article 14—Effects on rights subject to registration
  - Table of Contents Table of Contents
  - I. Introduction to Article 14 I. Introduction to Article 14
  - II. Concept of Public Register II. Concept of Public Register
  - III. Consequences of the Application of Article 14 III. Consequences of the Application of Article 14
- Article 15—European patents with unitary effect and community trade marks Article 15—European patents with unitary effect and community trade marks
  - Table of Contents Table of Contents
  - I. Introduction to Article 15 I. Introduction to Article 15
  - II. Scope of Application II. Scope of Application
  - III. Consequences of the Application of Article 15 III. Consequences of the Application of Article 15
- Article 16—Detrimental acts Article 16—Detrimental acts
  - Table of Contents Table of Contents
  - I. Introduction to Article 16 I. Introduction to Article 16
  - II. General Rule: Article 7(2)(m) II. General Rule: Article 7(2)(m)
  - III. The Rationale for Article 16 III. The Rationale for Article 16
  - IV. Conditions for the Application of Article 16 IV. Conditions for the Application of Article 16
  - V. Consequences of the Application of Article 16 V. Consequences of the Application of Article 16
  - VI. Bibliography VI. Bibliography
    - Notes
- Article 17—Protection of third-party purchasers Article 17—Protection of third-party purchasers
  - Table of Contents Table of Contents
  - I. Introduction to Article 17 I. Introduction to Article 17
  - II. Conditions of Application of Article 17 II. Conditions of Application of Article 17
  - III. Consequences of the Application of Article 17 III. Consequences of the Application of Article 17
- Article 18—Effects of insolvency proceedings on pending lawsuits or arbitral proceedings Article 18—Effects of insolvency proceedings on pending lawsuits or arbitral proceedings
  - Table of Contents Table of Contents
  - I. Introduction to Article 18 I. Introduction to Article 18
  - II. Conditions of Application of Article 18 II. Conditions of Application of Article 18
  - III. Consequences of the Application of Article 18 III. Consequences of the Application of Article 18
  - IV. Excursus: Article 18 and vis attractiva concursus IV. Excursus: Article 18 and vis attractiva concursus
  - V. Bibliography V. Bibliography
    - Notes
- Notes
- Notes
II Recognition of Insolvency Proceedings
- Notes
- Notes
III Secondary Insolvency Proceedings
- Notes
- Notes
IV Provision Of Information For Creditors And Lodgement Of Their Claims
- Notes
- Notes
V Insolvency Proceedings of Members of a Group of Companies
- Notes
- Notes
VI Data Protection
- Notes
- Notes
VII Transitional and Final Provisions
- Notes
- Notes

Chapter

I General Provisions

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https://doi.org/10.1093/oso/9780198727286.003.0001

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