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Appendix 3 »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

4 Choice of Law Rules »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus
This chapter begins by providing an overview of the uniform rules of choice of law which are applicable to all proceedings governed by the EU Insolvency Regulation Recast (RR). The RR has replaced the original EC Insolvency Regulation (OR) and is applicable to insolvency proceedings opened on or after 26 June 2017. The choice of law rules are contained in Articles 7–18 RR and are substantially the same as their equivalents in the OR. The chapter then sets out the general principles of the RR in relation to its choice of law provisions. It discusses the general workings of the RR as to its choice of law provision in Article 7 and its system of the lex concursus (the law of the court that has opened insolvency proceedings) as the general rule. The chapter also examines the exceptions to this system, which are codified in Articles 8–18 RR. Finally, it looks at the material scope of the choice of law rules as a result of the introduction of a new provision in Article 6 RR and analyses the more complicated relation between applicable law and competence as to topics not covered in Articles 7 and 8–18 RR.

Contents—Summary »

Stuart Isaacs, Tom Smith, Christoph Paulus
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

6 Cross-Border Security and Quasi-Security »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus
This chapter begins by investigating the impact of insolvency proceedings recognized by the Insolvency Proceedings Regulation (EU) 2015/848 (RR) on the rights of secured creditors with assets in the EU, particularly the rights of such creditors to enforce their security and participate in the relevant insolvency proceedings. The RR attempts to strike a balance between giving extra-territorial effect to the main proceedings and the need to preserve the predictability of secured transactions entered into in accordance with the laws of a particular Member State. The chapter then considers the impact of such insolvency proceedings on the rights of secured assets with assets in the UK following the UK’s withdrawal from the European Union (Brexit). It also studies some practical examples to show how the legal principles may work in practice. The focus of the practical examples tends to be primarily, although not solely, on EU insolvency or enforcement procedures and on rights in rem which would be recognized as a matter of Member States’ law.

Appendix 1 European Union: Council Regulation (EC) No. 1346/2000 of 29 May 2000 on Insolvency Proceedings »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

7 Financial Institutions »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus
This chapter focuses on the EU Framework for financial institutions insolvencies. The Recast Insolvency Proceedings Regulation (RR) does not apply to proceedings that concern insurance undertakings; credit institutions; collective investment undertakings; and investment firms and other firms, institutions and undertakings to the extent that they are covered by Directive 2001/24/EC. The chapter looks at the Settlement Finality Directive, the Central Counterparties Regulation, and the Financial Collateral Directive. It also provides a commentary on the Winding-Up Directive, Solvency II and the Bank Recovery and Resolution Directive.

1 Historical Overview: The Drafting of the Insolvency Proceedings Regulation and Its Precursors »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus
This chapter details the drafting of the Insolvency Proceedings Regulation and its precursors. It provides a brief account of the protracted process which resulted in the adoption of the original Council Regulation (EC) 1346/2000. That project had begun as a proposal to conclude a Convention among the EEC Member States to regulate the conduct of insolvency proceedings as between themselves. In its final iteration, the text was adopted as a Regulation of the EC Council on 29 May 2000. Having been adopted in that form, the Regulation automatically entered into force on the appointed day—31 May 2002—in all the 14 Member States which were then participating in the legislative programme promulgated under the provisions of the EC Treaty. The chapter then looks at the revision of the Original Insolvency Proceedings Regulation (2000) from 2012 to 2015, before considering the Recast Insolvency Proceedings Regulation 2015.

2 The Insolvency Proceedings Regulation as an EU Legal Instrument »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus
This chapter discusses the Insolvency Proceedings Regulation as an EU legal instrument. The Insolvency Proceedings Regulation is a form of EU subordinate legislation made under the Treaty on the Functioning of the European Union (TFEU). As such, its meaning and effects in national law are matters of EU law. This is because of the doctrine of the supremacy of EU law over national law. In particular, in ascribing meaning, or giving effect, to an EU legal instrument, a Member State court must do so in accordance with the principles laid down by the Court of Justice of the European Union (CJEU). The chapter then sets out the particular legal attributes which the Insolvency Proceedings Regulation has as an EU measure and describes the way in which it is to be understood as a matter of EU law. It also details the legal mechanisms established by the EU whereby solutions to questions of validity and interpretation may be obtained.

List of Abbreviations »

Stuart Isaacs, Tom Smith, Christoph Paulus
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

List of Contributors »

Stuart Isaacs, Tom Smith, Christoph Paulus
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

9 The Ongoing Potential Application of the RR in the UK »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus
This chapter assesses the ongoing potential application of the Recast Insolvency Proceedings Regulation (RR) in the United Kingdom. With Brexit, the UK ended its membership of the EU, a process leading to a formal UK/EU withdrawal agreement and the enactment in the UK of the European Union (Withdrawal Agreement) Act 2020. Under the Insolvency (Amendment) (EU Exit) Regulations 2019, the RR (renamed the Retained RR) continues to be applicable to insolvency proceedings opened prior to the end of the Transition Period. After the end of the Transition Period, UK law has retained as a basis for its jurisdiction the elements of the RR which provide for a debtor to be put into insolvency proceedings if it has its centre of main interests (COMI) in the UK or its COMI is in an EU Member State and there is an establishment in the UK. The chapter then considers the new jurisdictional tests from the RR preserved in UK law as the basis for opening insolvency proceedings in the UK. It also considers the recognition of EU proceedings in the UK under the UNCITRAL Model Law and common law rules.

Preface to the Fourth Edition »

Stuart Isaacs, Christoph G Paulus, Tom Smith
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

Preface to the Second Edition »

Gabriel Moss, Ian Fletcher, Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

Preface to the Third Edition »

Gabriel Moss, Ian Fletcher, Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

5 Recognition and Enforcement »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus
This chapter addresses the recognition and enforcement of insolvency proceedings both under and outside Insolvency Proceedings Regulation (EU) 2015/848 (RR). First, it deals with three sources of recognition and judicial assistance which are available outside the Insolvency Proceedings Regulation: English common law, section 426 of the Insolvency Act, and the UNCITRAL Model Law. The Model Law is likely to bear increased importance in future years, in light of the departure of the United Kingdom from the EU (Brexit).

▸ Regulation (EU) 2015/848 of the European Parliament and of the Council »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

3 Scope and Jurisdiction »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus
This chapter examines the scope of the Insolvency Proceedings Regulation, which has changed significantly after the entry into force of the Recast Insolvency Proceedings Regulation (RR). The RR substantially expanded the material scope of the Insolvency Proceedings Regulation by allowing more types of proceedings to be covered by it. However, the exit of the UK from the EU in December of 2020 without any substitute for the RR led to a shrinkage of the territory on which the RR applies. The chapter then looks at the sphere of the Insolvency Proceedings Regulation’s application in terms of the types of proceedings, the types of debtors, and the territories which it covers. It also considers how the Insolvency Proceedings Regulation establishes Member States’ international jurisdiction with respect to several types of proceedings, namely (a) main insolvency proceedings, (b) territorial insolvency proceedings, (c) ancillary proceedings, (d) proceedings concerning protective and preservation measures, and (e) group coordination proceedings.

Table of Cases »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

Table of European Legislation and International Conventions »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus

Table of Statutes »

Stuart Isaacs
From: Moss, Fletcher and Isaacs on The EU Regulation on Insolvency Proceedings (4th Edition)
Edited By: Tom Smith KC, Stuart Isaacs KC, Christoph Paulus