Center of main interest (COMI) and jurisdiction of national courts in insolvency matters (insolvency status)

Alexander J. Bělohlávek (Department of Law, Faculty of Economics, VŠB Technical University of Ostrava, Ostrava, Czech Republic)

International Journal of Law and Management

ISSN: 1754-243X

Publication date: 21 March 2008

Abstract

Purpose

The applicable jurisdiction for insolvency proceedings, as provided by the Regulation (EC) No 1346/2000 on insolvency proceedings, is the court of the Member State where the debtor's center of main interest (COMI) is located (Article 3(1)). The Regulation, however, does not provide a comprehensive definition of the COMI. This paper seeks to explore the meaning and developments behind the meaning of COMI as influenced by judicial reasoning and conflicts across Member States.

Design/methodology/approach

The study centres around the emerging jurisprudence and analyses case law across Member States in order to draw conclusions on the meaning of COMI and the emerging concepts. Extensive consideration of statutory interpretation, case reports and judicial comment is present in order to inform and develop conclusions.

Findings

In the absence of a definition it appears that the only relevant European guidance emerges from recital 13 and Article 3 (1). With little guidance in the Regulation, it has therefore been left to national courts to decide how the notion of COMI should be interpreted. Determining the COMI has emerged as one of the most controversial aspect and the principle point of legal conflict, with some highly debated cases within member states’ courts. On the basis of the case law, it is suggested that the interpretation of COMI is more flexible in UK and Italian courts. The approach adopted in continental Europe is referred to as the “centre of operations approach”, i.e. the debtor's COMI has to be determined by the place where he is “ascertainable by third parties”. The Anglo Saxon approach, on the other hand, is known as the “mind of management approach”, i.e. the debtor's COMI must be situated where decisions are actually made. The latter seems to enjoy a more practical and accessible approach.

Originality/value

Not only will the findings assist those seeking to understand the process and COMI requirements across member states but it will also assist those researchers seeking to understanding the comparative and conflict of law barriers to pan‐European insolvency proceedings.

Keywords

Citation

Bělohlávek, A. (2008), "Center of main interest (COMI) and jurisdiction of national courts in insolvency matters (insolvency status)", International Journal of Law and Management, Vol. 50 No. 2, pp. 53-86. https://doi.org/10.1108/17542430810862333

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Publisher

:

Emerald Group Publishing Limited

Copyright © 2008, Emerald Group Publishing Limited

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