This reflects the position of the CJEU generally that once an EU Regulation on judicial cooperation and other matters is issued, the external competence to determine international agreements with third countries is exclusive to the EU, not individual Member States. This is not therefore exclusive to the UK in the context of Brexit.
Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities are addressed in Article 63, which states the EU's intention that the Recast EIR would continue to apply to insolvency proceedings opened before the end of any transition period. With much of the EU Draft Withdrawal Agreement to be agreed following several rounds of negotiations, this provision was agreed following the June round of negotiations with a minor amendment extending to proceedings under Article 6 1 of the Recast EIR.
The outbound benefits for the UK are, however, limited. Furthermore, while The Model Law provides a clear pathway for recognition of foreign insolvency proceedings, this recognition is not automatic as with the Recast EIR but requires application to a local court to gain recognition and relief.
» Insolvency Statute (Insolvenzordnung, InsO) German Law Archive
As such, The Model Law is unlikely to offer much succour, unless other Member States introduce it in the near future. Only 44 states have adopted The Model Law globally since its introduction in , however, and this has tended to form part of a larger review of domestic law. While this would not assist with the recognition of insolvency proceedings, it may offer some assistance with issues arising within insolvency proceedings if approved by UNCITRAL and subsequently incorporated by Member States.
An alternative could be reliance on judicial cooperation. Such cooperation would need to be fostered with Member States' domestic courts for this to be a viable alternative. The requirement for multiple proceedings for such an approach would represent a significant step backwards from the current streamlined and efficient provisions of the Recast EIR.
Such an approach would add cost and delay, and it is not even certain that proceedings would or could be opened in other Member States. Direct court access for foreign insolvency practitioners is also encouraged, 37 37 Ibid. While not a perfect solution, the EU JudgeCo Principles may offer some optimism in the event of no Brexit deal being reached in the absence of any recognition framework or treaties.
On the basis that the UK was not a signatory to the Istanbul Convention, it was never formally ratified by sufficient members to come into force and has been superseded by the Recast EIR see Article 85 1 k , furtherance of this discussion is beyond the scope of this article. In the event of the UK leaving the EU without some form of treaty to mirror the existing provisions of the Recast EIR, there does not appear to be any suitable overarching framework in place that will fill this void. As a consequence, recognition of insolvency proceedings opened in the UK will be subject to the private international law of individual Member States.
This will lead to two possible options for insolvency practitioners: first, seeking to open ancillary proceedings in other Member States and then seeking coordination of these proceedings; or second, seeking recognition of UK proceedings in accordance with Member States' local law. It would not be possible to address the approach of all 26 Member States still subject to the Recast EIR in this paper.
Instead, the paper will consider the likely approach of five of the UK's key trading partners: France, Germany, Ireland, the Netherlands and Spain. The paper will now consider on what basis collective insolvency proceedings commenced in the UK in respect of a company with its COMI in the UK would be recognised under the domestic law of these five Member States. Given that the mutual respect and sincere cooperation principles underlying European texts, such as the Recast EIR, would no longer be applicable as of right, 43 43 Article 4 3 , Treaty on European Union  OJ C Jurisdiction would also extend to the situation where the business operates in France via a branch or other presence without legal personality.
In such cases, the court would examine the reality of the business' operations, especially if it thinks that the centre of interests is in France. Even without a centre of interests, French courts have historically acceded to creditors' petitions to open insolvency proceedings, often on the basis of any connecting factors they deem important. Although this liberal jurisprudence has on occasion been curbed, 49 49 Cassation commerciale, 23 May , Dalloz , As identified above, France has not adopted The Model Law, despite recommendations in this direction.
Similarly, the few treaties that exist between France and other countries do not involve the UK. As a result, creditors in France could still exercise any rights against the debtor, including suing for payment, attaching property and petitioning for insolvency, despite the existence of a foreign judgment. However, the absence of a formal judgment might constitute an impediment to the exequatur process being engaged. The debtor must be cited to appear, even if the foreign judgment was obtained ex parte.
The court hearing the application must content itself with an examination of the regularity of the foreign judgment and that the public interest and legal system in France would not be offended by the recognition of the judgment. The elements a court will look at in its examination include whether the foreign court had proper jurisdiction, whether the proper law was applied, compliance with due process and public policy rules, including whether the procedure was adversarial, and the absence of fraud. The COMI issue noted earlier will also receive attention as part of this examination process.
The civil process administered by the commercial courts is generally fast. Moreover, the recent establishment of specialist insolvency courts for the hearing of large matters will further enhance the speed of hearings for cases within their purview. Once obtained, the foreign judgment carries the same authority as a French judgment and is treated as res judicata. More importantly, concurrent insolvency proceedings in France against the debtor may not be initiated.
Thus, while the recognition of UK proceedings might be forthcoming, it is by no means certain that all the effects of the judgment will be recognised automatically. Germany has not adopted The Model Law; therefore, answers relating to the recognition of UK proceedings cannot be found therein.
Beck, , Vorbemerkung Section Insolvenzordnung, recital Several bilateral agreements between Germany and other countries exist but do not include the UK. The fundamental principle of lex fori concursus applies for international insolvencies just as it does for insolvencies regulated under the Recast EIR; the insolvency law of the country in which the proceedings have been opened applies.
Beck, , Section , recital 7— In contrast to the Recast EIR, there is no automatic recognition of foreign proceedings. The competence of the foreign courts to exercise jurisdiction is fully reviewable and has to be ascertained. Recognition in Germany will not be granted if the foreign court that opened the proceedings did not have the competence to exercise jurisdiction on the basis of German standards.
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Recognition will also not be granted if it would lead to a breach of the fundamental principles of German law, especially to a breach of German fundamental rights Grundrechte. An insolvency proceeding with its COMI in the UK will only take effect in Germany if, first, the foreign proceeding qualifies as an insolvency proceeding in accordance with German law.
It is in general orientated towards determining whether the proceeding in question has the aim of creditors' satisfaction, in accordance with Section 1 of the InsO. There are further practical issues that need to be considered. There are in excess of courts in Germany that deal with corporate insolvency matters.
The judges in these courts act alone and often in isolation. As a consequence, application for recognition can be cumbersome, and there is a risk of judgments being inconsistent. Furthermore, the insolvency practitioner needs to satisfy the court that he has locus to represent the company in the proceedings.
This requires appropriate documentary evidence in addition to the issues raised above. If a proceeding is recognised in Germany, all decisions of the foreign courts that take action to secure the estate after opening of the proceedings will also be recognised. This also applies to other measures of the foreign court that are taken for the implementation or termination of the proceeding. Outside of the provisions of the Recast EIR, it will be easier for the German courts to open a territorial insolvency proceeding Partikularinsolvenzverfahren for national assets.
In contrast to Article 3 2 of the Recast EIR, which requires that the debtor must have an establishment in Germany, Section of the InsO only requires that the debtor should have assets in Germany. There is a lacuna in the German regulations with regard to procedures with no court involvement, however. The legislative framework in the Republic of Ireland provides similar insolvency processes to those available under UK legislation, including compulsory and voluntary liquidations, receiverships, and a debtor in possession rescue process known as the Examinership process.
In addition, Irish company law also contains provisions that are similar to the UK Scheme of Arrangement provisions. The Irish High Court has jurisdiction to wind up any unregistered company, including a company incorporated outside Ireland that has been carrying on business in the State. Essentially, winding up proceedings initiated in prescribed states will be recognised by the Irish courts. It is noteworthy that only one such ministerial order was made in respect of the predecessor to Section , Section of the Companies Act This recognised Northern Ireland and Great Britain for the purposes of that section, though was revoked following the introduction of the EIR Prior to this revocation, any compulsory winding up commenced in the UK was automatically recognised in Ireland.
There is no reason to suppose that such an order could not be put in place again after the UK leaves the EU, though it must be emphasised that this would require positive action by the Minister for Enterprise, Trade and Employment. In such a situation, winding up proceedings initiated in the UK would be automatically recognised in Ireland. Looking beyond winding up proceedings, Ireland is not party to The Model Law at present, although there are ongoing discussions concerning its adoption.
Neither are there any relevant treaties to which the UK is a party. Recognition and assistance of foreign insolvency proceedings not subject to the Recast EIR or Section of the Companies Act assuming the UK is recognised by ministerial order as discussed above would therefore be governed by the common law rules of private international law in this area.
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German term or phrase: Insolvenzordnung. Local time: Explanation: Insolvenzordnung niem. Selected response from: Crannmer Local time: Peer comments on this answer and responses from the answerer agree. Bodies Representing the Creditors. Section 56a Involvement of the Creditors in the Appointment of the Administrator. Chapter One General Effects. Continued Community. Chapter Two Performance of Transactions. Cooperation of the Works Council. Financial Services. Chapter One Preservation of the Insolvency Estate.
Chapter Two Decision on Disposition. Part Five Satisfaction of the Insolvency Creditors. Discontinuation of the Proceedings. Chapter One Determination of Claims. Chapter Two Distribution. Chapter Three Discontinuation of Insolvency Proceedings. Part Six Insolvency Plan.
Chapter One Establishment of the Plan. Section Submission of the Insolvency Plan. Section a Rights of the Shareholders. Earnings and Finance Plan. Chapter Two Acceptance and Approval of the Plan.