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8 Commentary on the Original Insolvency Proceedings Regulation and the Recast Insolvency Proceedings Regulation »

Professor Christoph 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
This chapter offers commentary on the Original Insolvency Proceedings Regulation (OR), which applies to proceedings opened before 26 June 2017, and the Recast Insolvency Proceedings Regulation (RR). Despite the repeal of the OR, proceedings opened prior to 26 June 2017 will continue to be governed by the Original Regulation. The principal tools of interpretation used here are the Recitals to the OR and RR, printed respectively in Appendices 1 and 3, and the Virgos-Schmit Report. The Recitals note that insolvencies and cross-border insolvency proceedings are factors which can affect the proper functioning of the European internal market. Accordingly, it is desirable that cross-border insolvency proceedings should operate efficiently and effectively. In order to achieve this, there is a need for the co-ordination of the various measures which may be taken in relation to an insolvent debtor’s assets across the European Union. It is therefore stated that the purpose of the OR is to be a Community law measure, binding and directly applicable in Member States, containing provisions relating to jurisdiction, recognition, and applicable law in respect of insolvency proceedings. The re-worded Article 1 of RR brings the position up to date and covers both insolvency and pre-insolvency proceedings.