Annex III Compilation of case law

Transkript

1 RUPRECHT-KARLS-UNIVERSITÄT UNIVERSITÄT WIEN HEIDELBERG INSTITUT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVAT- UND WIRTSCHAFTSRECHT INSTITUT FÜR ZIVILVERFAHRENSRECHT Annex III Compilation of case law (JUST/2011/JCIV/PR/0049/A4 External Evaluation of Regulation No. 1346/2000/EC on Insolvency Proceedings)

2 Table of Contents Table of Contents I. Introduction... 1 II. Scope of the Regulation... 1 A. Cases where the debtor s COMI is located outside the Community Case Law Legal Doctrine B. Insolvency Proceedings covered by the scope of the Regulation (Hybrid Proceedings) Case Law Legal Doctrine III. International Jurisdiction A. Definition of COMI (including COMI shifting) Case Law Concerning Companies or Legal Persons Case Law Concerning Natural Persons Case Law on the Recognition of Judgements Opening Insolvency Proceedings without Exercising a Jurisdictional Review Legal Doctrine B. Secondary or Independent Territorial Proceedings Case Law Legal Doctrine C. Actions Deriving Directly from Insolvency Proceedings or Being Closely Connected to Them (Seagon/Deko Marty et al) Case Law Legal Doctrine IV. Applicable Law A. Lex fori concursus and International Corporate Law Case Law Legal Doctrine B. Third Parties Rights in Rem (i.e. Application of Art. 5 EIR) Case Law Legal Doctrine I

3 Table of Contents C. Detrimental Acts (i.e. Application of Art. 13 EIR) Case Law Legal Doctrine V. Group of Companies A. Jurisdiction Case Law Legal Doctrine B. Coordination of Proceedings Case Law Legal Doctrine VI. Coordination of Proceedings A. Coordination of (two or more) Main Proceedings Case Law Legal Doctrine B. Coordination of Main and Secondary Proceedings Case Law Legal Doctrine C. Issues of Communication Case Law Legal Doctrine VII. Information on Insolvency Proceedings A. Publication Requirements Case Law Legal Doctrine B. Notification of Creditors Case Law II

4 I. Introduction The present annex sets out a compilation of the published case law on the European Insolvency Regulation rendered by the ECJ and the national courts. It is based on a comprehensive research of pertinent (and available) databases and covers the period from the Regulation s enactment through the end of October Together with the national reports, the case law compilation aims to provide a complete picture of the application of the EIR in practice. Consequently, the compilation specifically focuses on the main issues also addressed in the Study (i.e. scope of the Regulation, jurisdiction, group of companies, applicable law, coordination of proceedings and information for creditors). As agreed with the EU-Commission, the issue of recognition is not dealt with separately. In the present annex, case law dealing with issues of recognition is, therefore, addressed in the context of the following sections: scope of the Regulation (see II.), international jurisdiction (see, in particular, III. A. 3) and coordination of proceedings (see V.B and VI). Each case is introduced with an English abstract followed by extracts of the court s reasoning in its original language (if available). The headings also indicate where the cases have been published and make reference to existing case annotations and/or English translations. The case law compilation is supplemented by brief sections highlighting demands for reform of the Regulation voiced in legal doctrine. The relevant statements are reproduced in the form of small extracts. II. Scope of the Regulation A. Cases where the debtor s COMI is located outside the Community The following cases exemplify selected scenarios in which Member State courts were faced with the debtor s COMI located outside the Community and the opening of insolvency proceedings in third countries. 1

5 1. Case Law a) ECJ b) Courts of the Member States 1. Corte di Cassazione, n , D. G. F. Holding -v- Equitalia Gerit Spa. and others, INSOL EIR-case register Nr. 152 (following the case abstract by Corno) In February 2009, D.G. Holding S.r.l. (the debtor) merged with Ecoprint S.r.l. and transferred its administrative offices to England, where all the employees had been working. Such transfer of COMI (or of registered office?!) was registered in the Rome Companies Register on 18 March On 5 February 2009, the debtor transferred its registered office to Delaware, USA. The transfer was registered in the Rome Companies Register on 28 April Subsequently, on 18 June 2009, the debtor was deleted from the Rome Companies Register. On 11 August and later on several creditors filed an application for the opening of a compulsory winding up proceeding (a fallimento) against the debtor. The Italian Supreme Court of Cassation noted that the transfer of a registered office of a company to a non-eu state did not exclude Italian jurisdiction, even if the application to open proceedings was filed before the transfer. Italian Jurisdiction is imperative according to articles 9 and 10 of Italian Bankruptcy Law and article 25 of Italian Law no. 218/1995 on conflict of laws except as provided by EC legislation and international conventions. Italian jurisdiction is excluded only in the case of an effective and timely transfer of the registered office abroad and where such transfer is not fictitious. Based on Article 3(1) EIR, the Court of Cassation noted the fictitious character of the transfer of the registered office of the debtor: (a) the separation of the transfer of the registered office to the USA and the transfer of COMI to England looked to be unjustified; as a matter of fact the registered office was thousands of miles from the business premises where the COMI was located. Moreover neither the transfer of the registered office to the USA nor the transfer of COMI to England had been effective. Consequently, Article 3(1) EIR did not apply to this specific case; (b) the transfer of the registered office from Italy to the USA appeared not to be for business reasons no such reasons had been documented by the company rather to be solely for forum shopping purposes. Therefore, the Supreme Court of Cassation confirmed that the Italian court had jurisdiction to decide on requests for the opening of insolvency proceedings. 2

6 2. Tribunale di Terni , E.L. S.r.l. / O. Veicoli Industriali S.r.l., INSOL EIR-case register Nr. 151 (Corno) In 2008 O. Veicoli Industriali S.r.l. (the applicant) filed an application based on a court order for payment (decreto ingiuntivo) for the opening of a compulsory winding up proceeding (a fallimento) against E.L. S.r.l. (the debtor), a company incorporated in Italy. The said proceeding was closed in 31 October 2008, following a waiver of the claim filed by the applicant in court on 27 June Such waiver was based on an agreement between the debtor and the applicant for the payment of the outstanding debt, which was the basis of its application for fallimento. Following such agreement, the debtor asked the applicant for another debt rescheduling and issued bills of exchange (cambiali) in June 2008, due on December 2008 and January 2009, which were not paid when due. Prior to the date for the payment of the amounts due pursuant to the agreement, on 8 October 2009 the debtor transferred its registered office to Venezuela. Simultaneously the shares of the debtor were sold to a person from Venezuela, resident in Ravenna (Italy). The sole director and shareholder, however, was appointed as company s representative in Italy as well. On 27 April 2010 the applicant filed another application for the opening of a fallimento proceeding against the debtor at Terni Tribunal based on the nonfulfillment of the debtor s obligations under the agreement. Following service of the said application to the debtor in Venezuela, on 7 February 2011 the Terni Tribunal declared the debtor insolvent and opened the fallimento proceeding. The Terni Court considered the transfer of the registered office to Venezuela fictitious because the transfer: (i) was made following the withdrawal of the application to open insolvency proceedings ; (ii) was made on the basis of requests from the debtor to the applicant to postpone payment and following the issuance of bills of exchange (cambiali) in June 2008, which were not then paid when due in December 2008 and January 2009; (iii) no reason was provided in the deed of transfer of the registered office or in the deed of transfer of the debtor s shares; (iv) the notice of the application for fallimento to the Italian address of the new legal representative in June 2010 was unsuccessful; (v) no evidence was provided by the debtor, following the transfer of the legal seat to Venezuela, that the debtor carried out its activities in the new legal seat or that the decisions and directions were provided from Venezuela. Moreover, as the transfer of the registered office was performed six months before the filing for bankruptcy, it was to be disregarded in accordance with article 9, paragraph 2 of Italian Bankruptcy Law. The court therefore confirmed that the Italian courts did have jurisdiction. 3

7 3. District Court ( AG ) Göttingen , NZI 2011, 160 = ZInsO 2011, 239 = ZIP 2011, 190 According to the court for territorial proceedings in Germany to be opened under Section 354(2) of the German Insolvency Act against a debtor domiciled in Thailand it is sufficient to show that: a) the debtor s immovable property in Germany forms a major part of his/her assets and b) the politically instable position in the country where the debtor is domiciled put the proper functioning of the respective countries court system into question. By providing prima facie evidence of the just mentioned facts the applicant has shown sufficient special interest in the opening of insolvency proceedings in Germany. Moreover, it is, in the court s opinion, already sufficient for territorial proceedings in Germany to be opened if neither an internet research nor a request to the respective chamber of commerce reveals whether the possibility to open insolvency proceedings against natural persons exists at all in the country where the debtor has his domicile. 4. Amsterdam Court of Appeal , Yukos-Case, IILR 2011, 197, = BeckRS 2011, Yukos Oil Company ("Yukos") is a Russian company. Its 100% Dutch subsidiary, Yukos Finance B.V. held most of the non-russian activities. In 2003 the Russian state commenced actions against Yukos and its affiliates which, inter alia, led to insolvency proceedings being opened against Yukos in Russia. Subsequently, a creditors' meeting voted Yukos into bankruptcy. The majority of the votes at that meeting were cast by the tax authorities. Shortly after his appointment, the Russian receiver, Eduard Rebgun, announced that as the representative of Yukos Finance's sole shareholder, he intended to adopt a resolution replacing that company's management. This was the starting point of a number of proceedings in the Dutch courts which also had to decide on the recognition of the Russian bankruptcy judgment and acts performed on its basis. 3.3 The grounds for appeal of Rebgun et al. and of Promneftstroy et al. concern, inter alia, the degree to which the judgment mentioned at in which Yukos Oil (in the Dutch terminology) was declared failliet (bankrupt) (hereinafter: the (Russian) Bankruptcy Judgment), with the appointment of Rebgun as receiver ([ curator ] hereinafter: receiver), is eligible for review by the Dutch court, and the consequences that the Dutch court may attach to that review With respect to the Russian Bankruptcy Judgment the following applies. According to Dutch private international law a final judgment by a foreign court cannot be recognised in this country if (insofar as relevant here) either the enforcement of the foreign judgment would lead to a breach of Dutch (or international) public policy, or if the foreign judgment was brought about in proceedings in which by Dutch standards the principles of the proper administration of justice were unacceptably ignored. It may be argued that the latter situation is a specific embodiment of the former. 4

8 3.3.2 If the Russian Bankruptcy Judgment can be recognised in this country, the following applies. The question as to the existence and contents of the powers of the foreign receiver is a question of bankruptcy law and is governed by the law applicable to the bankruptcy concerned, in this case this being Russian law. In doing so as there is no international regulation providing otherwise an investigation will have to be held into whether the principle of the territorial effect of the bankruptcy, as applicable under Dutch private international law, prevents the receiver from exercising certain powers that he holds under Russian law, Cf. NL Supr. Ct. 19 December 2008, NJ 2009, The Russian Bankruptcy Judgment has territorial effect, not only in the sense that the bankruptcy attachment on the assets of Yukos Oil does not extend to its assets present in the Netherlands, but also in such manner that the legal consequences attached to the bankruptcy under Russian law may not be invoked in the Netherlands to the extent that this could lead to unsatisfied creditors no longer being able to have recourse during or after the end of the bankruptcy on the assets of (the former) Yukos Oil present in the Netherlands The case law reveals that this principle of territoriality is based on the principle of sovereignty, which prevents the authority of the one state being enforced with coercion on the territory of a different sovereign state. Additionally it serves to protect creditors, but it does not aim to (also) protect the bankrupt entity against the consequences of insolvency proceedings in a country with which the Netherlands does not have a treaty for recognising bankruptcies pronounced there. Accordingly, the Court of Appeal considers this principle of territoriality to be a rule of public policy. The result is that the Russian Bankruptcy Judgment must be deprived of every consequence that would rob the principle of territoriality of its effectiveness. 5. Court of Appeal, Rubin and another v Eurofinance SA 30 July 2010, [2010] EWCA Civ 895 ; [2010] All ER (D) 358 (Jul), IILR 2011, 87 The Consumers Trust ( TCT or the company ) was established to carry on a sales promotion scheme (which the Court of Appeal described as a scam ) in the US and Canada. This scheme spurred the Attorney General for the State of Missouri into action who brought proceedings under consumer protection legislation against TCT. The company was forced into a substantial settlement which in turn caused the owner, at that time Mr Adrian Roman, to apply for the company's bankruptcy under Chapter 11 of the United States Bankruptcy Code before the US Bankruptcy Court for the Southern District of New York. Just prior to that, the owner had also applied to the English High Court for an order appointing Mr Rubin and Mr Lan as joint receivers and managers (the receivers) of the company. A Joint Plan of Liquidation under Chapter 11 of the Bankruptcy Code was prepared according to which the receivers were given the exclusive power to commence, prosecute and resolve all causes of action against potential defendants. Subsequently, the receivers brought proceedings inter alia based on voidable transactions, fraudulent transfers and related claims under US law against a number of parties including 5

9 Eurofinance, Adrian Roman and others (the defendants), which led to a default judgment being rendered against them. The defendants were not present at the proceedings and did not submit to the jurisdiction of the New York Court. The US bankruptcy judge appointed the receivers to serve as foreign representatives on behalf of the company to seek recognition of the bankruptcy proceedings under the Cross-Border Insolvency Regulations 2006, to seek assistance and cooperation from the English High Court in prosecution of the Chapter 11 litigation and to take such further actions on behalf of the debtor as might be necessary. The receivers applied for (1) the recognition of the Chapter 11 bankruptcy proceedings as a foreign main proceeding in accordance with the Model Law as set out in Sch 1 of the Cross-Border Insolvency Regulations 2006 and (2) the enforcement of the judgment or parts of the judgment of the US Bankruptcy court against the defendants in accordance with Pts 70 and 73 of the CPR. THE VIEW FROM EUROPE [56] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters transposed into EU law the 1968 Brussels Convention which it supplanted. By art 2(d) it expressly excludes "bankruptcy, proceedings relating to the winding up of insolvent companies or other legal persons..." Insolvency proceedings are separately dealt with by Council Regulation (EC) No 1346/2000 of 29 May 2000 which applies to "collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator", see art 1(1). Those proceedings are listed in Annex A and in the United Kingdom they include winding up by or subject to the supervision of the court, creditors' voluntary winding up, administration, voluntary arrangements under insolvency legislation and bankruptcy or sequestration. It is interesting to see how this dichotomy between civil judgments and bankruptcy is being resolved. In Gourdain v Nadler (Case 133/78) [1979] ECR 733, [1979] 3 CMLR 180 the European Court of Justice said at p 744: "As far as concerns bankruptcy, proceedings relating to the winding up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings, according to the various laws of the contracting parties relating to debtors who have declared themselves unable to meet their liabilities, insolvency or the collapse of the debtor's creditworthiness, which involve the intervention of the courts culminating in the compulsory 'liquidation des biens' in the interest of the general body of creditors of the person, firm or company, or at least in supervision by the courts, it is necessary, if decisions relating to bankruptcy and winding up are to be excluded from the scope of the Convention, that they must derive directly from the bankruptcy or winding up and be closely connected with the proceedings for the 'liquidation des biens' or the 'rglement judiciaire'. In order to answer the question referred to the court by the national court it is therefore necessary to ascertain whether the legal foundation of an application such as that provided for in article 99 of the French code is based on the law relating to bankruptcy and winding up as interpreted for the purposes of the Convention." 6

10 [57] In UBS AG v Omni Holdings AG (in liquidation) [2000] 1 WLR 916, 922, Rimer J, as he then was, said: "It is apparent, therefore, that for the paragraph (2) exception [of bankruptcy from civil matters] to apply it is not enough that the claim can be said to relate to the winding-up of an insolvent company: it must derive directly from it. For example, a claim by a liquidator to recover the company's pre-liquidation debts would be a claim which would be made in the course of the winding-up and could therefore in one sense be said to relate to it; but I respectfully agree with Rattee J when he expressed the view in In re Hayward (decd) [1997] Ch 45, 54D that such a claim would not be within the paragraph (2) exception so as to take it outside the scope of the [Lugano] convention. It is a claim which would have existed as much before as during the winding-up and so would not be one deriving directly from it. By contrast, I think it probable that (by way of non-exhaustive examples) claims in a compulsory liquidation by a liquidator under section 238 (transactions at an undervalue) or section 239 (preferences) of the Insolvency Act 1986, being claims for which an insolvency regime for the company is a prerequisite, would be within the paragraph (2) exception. Such claims derive directly from the insolvency." [58] In Re Ultra Motorhomes International Ltd, Oakley v Ultra Vehicle Design Ltd (in liq) [2005] EWHC 872 (Ch), [2006] BCC 57, 68, [2006] BPIR 115 Lloyd LJ (sitting as a Judge of the Chancery Division) said, but one should note that it is obiter dicta: "42... it has been held that a claim by a liquidator to recover pre-liquidation debts, although made in the course of the winding-up and so, in a sense, relating to it, does not derive directly from it and is therefore not excluded from the Brussels Convention (and therefore now not from the Regulation) by art 1.2(b): see Re Hayward deceased [1997] Ch 45, and UBS AG v Omni Holding AG (in liq) [2000] 1 WLR 916 [2000] BCC 593. By contrast, proceedings by a liquidator against a debtor or a third party to set aside a transaction as having been effected at an undervalue or on the basis of wrongful or fraudulent trading would be claims deriving directly from the winding-up and therefore excluded from the Brussels Convention and now from the Judgments Regulation." [59] These may be straws in the wind but the wind blowing from my Lords, Lloyd and Rimer LJJ blows strongly. WHAT ABOUT THE MODEL LAW ITSELF? [60] As I have set out above (see 24 and 25) Mr Nicholas Strauss QC was quite clear and emphatic that the Adversary Proceedings were part and parcel of the Ch 11 Insolvency Proceedings. In my judgment he was right for the reasons he gave. Mr Staff contends that the analysis is flawed because the judge wrongly concentrated upon and construed the New York law whereas the Cross-Border Insolvency Regulations 2006, being part of our domestic law, require "foreign proceeding" to be construed as a matter of English law. Mr Staff is only half right. The Regulations do indeed provide that the UNCITRAL Model Law shall have the force of law in Great Britain but the Model Law thus enacted includes art 8 on Interpretation "In the interpretation of this Law, regard is to be had to its international origin and to the need to 7

11 promote uniformity in its application and the observance of good faith." The striking similarities conceded by the Respondents between ss 238 and 239 of the Insolvency Act 1986 and ss 547 and 548 of the American Code, and thus between these aspects of our law and the equivalent parts of the American law, justify a harmonised interpretation. That satisfies me that the judge fell into no error in reaching the conclusion that the Adversary Proceedings are part and parcel of the insolvency proceedings. CONCLUSIONS [61] Having regard to all of the above matters and having given long consideration to everything urged upon us by Mr Staff, I am driven to conclude that: (1) The ordinary rules for enforcing, or more precisely not enforcing, foreign judgments in personam do not apply to bankruptcy proceedings. (2) Bankruptcy proceedings include the mechanisms provided by ss 238 and 239 of the Insolvency Act 1986, and the equivalent provisions in the United States which allow for the office holder/legal representative to bring actions against third parties for the collective benefit of all creditors. These mechanisms are integral to and are central to the collective nature of bankruptcy and are not merely incidental procedural matters. (3) I am reinforced in my view that the orders with which we are concerned are part of the bankruptcy proceedings because in In re HIH Insurance Lord Hoffmann himself said in para 19 "Furthermore, the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme." (4) Albeit that they have the indicia of judgments in personam, the judgments of the New York court made in the Adversary Proceedings, are nonetheless judgments in and for the purposes of the collective enforcement regime of the bankruptcy proceedings and as such are governed by the sui generis private international law rules relating to bankruptcy and are not subject to the ordinary private international law rules preventing enforcement of judgments because the Defendants were not subject to the jurisdiction of the foreign court. This is a desirable development of the common law founded on the principles of modified universalism. It does not require the court to enforce anything that it could not do, mutatis mutandis, in a domestic context. (5) Whether viewed from an analysis of the United States Code and/or the Insolvency Act or as part of the matter of common law, the Adversary Proceedings must be recognised as a foreign main proceeding. Having been duly authorised in the foreign proceedings, the Appellants must be recognised as foreign representatives. I would dismiss the cross-appeal accordingly. [62] There remains the question of enforcement of the judgments against the Respondents. I accept the general principle of private international law that bankruptcy, whether personal or corporate, should be unitary and universal. There should be a unitary bankruptcy proceeding in the court of the bankrupt's domicile which receives world-wide recognition and it should apply universally to all the bankrupt's assets. That is the law stated in Cambridge Gas and HIH 8

12 Insurance and I would follow it. Add to that the further principle that recognition carries with it the active assistance of the court which should include assistance by doing whatever this court could have done in the case of domestic insolvency. As Lord Hoffmann said in Cambridge Gas at 22: "The purpose of recognition is to enable the foreign office holder or the creditors to avoid having to start parallel insolvency proceedings and to give them the remedies to which they would have been entitled if the equivalent proceedings had taken place in the domestic forum." 6. Court of Appeal of Portugal , INSOL EIR-case register Nr 136 (Neves) A Portuguese company requested the opening of insolvency proceedings in Portugal against the debtor, a Jersey, US based company with a permanent establishment in Portugal. The Portuguese court of appeal ruled that, according to Article 3(1)(2) EIR, unless it is otherwise stated, the company s COMI is located at the place of its registered office. If the company has its head office in Jersey and only a permanent representation in Portugal, the Portuguese courts only have jurisdiction to open special insolvency proceedings if so provided in domestic law, pursuant to article 294 of CIRE (Portuguese Insolvency and Restructuring Code). However, such proceedings are restricted to assets located in Portugal and only affect the permanent representation in Portugal. 7. Harms Offshore AHT 'Taurus' GmbH & Co. KG v Bloom & Ors, Court of Appeal - Civil Division , [2009] EWCA Civ 632, IILR 2010, 75 (Marshall) = BeckRS 2010, Two German creditors of an English company (Oilexco North Sea Ltd) which had entered administration pursuant to an order of the High Court commenced proceedings in New York seeking judgment for sums allegedly due from the company and an attachment and garnishment of its property sufficient to answer their claims. That claim was made without notice to the administrators and without the New York court being informed either that the High Court had made an administration order or that the charterparties under which the claims were made had exclusive London arbitration clauses. The New York court issued ex parte orders attaching the property of the company within the Southern District of New York. On the same date a summons was issued naming the company as defendant, and shortly thereafter writs of attachment and garnishment were issued against the property of the company, including property held for its benefit or moving through or within the possession of several named banks. In ignorance of the attachments the administrators sought to make a substantial payment to a post-administration supplier of services to the company. That sum was paid to the supplier's account with one of the banks in New York which had been served with the attachment orders and as a result a 9

13 total of approximately US$ 2.2m was attached. After being served with the New York proceedings and attachment orders the administrators applied to the High Court for an order requiring the creditors to take all necessary steps to procure the release of the two ex parte orders. The Court of Appeal stated that, under domestic insolvency law, the administration moratorium does not have extra-territorial effect and does thereby not prevent the attachment of assets in the US. However, the Court of Appeal granted the relief sought, holding that there was jurisdiction to restrain acts which interfered with an administration being conducted under an order of the English court, notwithstanding that the acts complained of had been committed abroad. 8. Higher Regional Court ( OLG ) Frankfurt , ZIP 2007, 932 = eir-database.com No. 194 = OLGReport Frankfurt 2007, 723 = NZI 2007, Beil. Heft 10, 21 (Dahl/Stendal) = IPRspr 2007 Nr 245, 699 Claimant filed a damages claim against respondent before German courts. Subsequently, the respondent requested the court to stay proceedings on the basis that US-Chapter-11- proceedings were initiated over its estate. The OLG Frankfurt decided to recognize the foreign insolvency proceedings and stay proceedings according to Section 240 Insolvency Act. 13 Es ist weder zu fordern, dass das ausländische Verfahren in seiner Ausgestaltung einem inländischen Insolvenzverfahren spiegelbildlich entspricht (vgl. Mohrbutter/Wenner, a. a. O:, Anm. XXIII.106; Taupitz, a. a. O., S. 226), noch ist im Rahmen der Qualifikation zu prüfen, ob die Rechtsstellung der Gläubiger der nach der InsO entspricht (vgl. MünchKommInsO-Reinhart, Art. 102 EGInsO, Rz. 21). 14 Die Grenze der Anwendung ausländischen Sanierungsrechts ist erst der ordre public, die nicht allein deshalb überschritten wird, weil das US-amerikanische Sanierungsverfahren bei Schuldnerantrag ohne den Nachweis der hiesigen Insolvenzgründe eröffnet werden kann (vgl. Wenner, KTS 1990, 429 (432)), zumal das Verfahren sich auf Insolvenz gründet, die unwiderleglich zu vermuten ist, wenn sich der Schuldner damit einverstanden erklärt, weil er die damit verbundenen Risiken und Nachteile als solventer Schuldner kaum auf sich laden wird ( ). 15 Der Senat hält die für die Qualifikation des Chapter 11 B.C.-Verfahrens als Insolvenzverfahren angeführten Gründe in ihrer Gesamtheit für überzeugend und schließt sich dieser Auffassung an. Entscheidender Gesichtspunkt für die Qualifikation ist, ob das ausländische Verfahren die Regelung eines insolvenzrechtlichen Tatbestandes, der Insuffizienz des Schuldnervermögens, bezweckt (vgl. Stephan in HK-InsO, 4. Aufl. 2006, 343, Rz. 6). Diese Voraussetzung erfüllt das Verfahren nach Chapter 11 B.C. Die Tatsache, dass dem Schuldner zu Verfahrensbeginn großzügig Schutz vor den Gläubigern gewährt wird, nachdem diese jedenfalls in der Anfangszeit nicht den Übergang des Verfahrens in die Liquidation beantragen können, hat als rechtspolitischer Gesichtspunkt der Verfahrensausgestaltung bei der grundsätzlichen Qualifikation des Verfahrens als (US-amerikanischem) Insolvenzverfahren, in dem eine 10

14 Reorganisation des Schuldners nur mit Zustimmung der Gläubiger erzielt werden kann, außer Betracht zu bleiben ( ). 16 Der Unterbrechung des Verfahrens steht nicht entgegen, dass der Entscheidung zugrunde zu legen ist, dass die Beklagte nach dem Konkursstatut die Verfügungsbefugnis über das insolvenzbefangene Vermögen nicht verloren hat und damit weiter prozessführungsbefugt ist. 9. Federal Labour Court ( BAG ) , 3 AZR 618/06, ZIP 2007, 2047 = NZI 2008, 122 = BAGE 121, 309 = AP Nr. 7 zu 240 ZPO = DB 2007, 2543 = EWiR 2007, 759 = IPRax 2009, 343 (Temming 327) EBE/BAG Beilage 2007, Ls 137/07 = EzA-SD 2007, Nr. 22, 11 = ArbuR 2007, 407 = ArbRB 2007, 348 = JurisPR-ArbR 47/2007 The employer s US-Chapter 11-petition and the ensuing automatic reorganization proceedings led to a stay of proceedings dealing with the wrongful termination of the employment contract. Upon the claimant s request, however, proceedings had to be resumed irrespective of whether a court order lifting the stay in the US-proceedings existed. 34 bb) Selbst wenn es auf die Unterscheidung zwischen den rechtlichen Möglichkeiten ( können ) und den prozessualen Verhaltenspflichten ( dürfen ) ankäme, änderte sich im Ergebnis nichts. Der automatic stay wirkt auf die prozessualen Befugnisse (Berechtigungen) der Gläubiger unmittelbar ein. Er hat zur Folge, dass sämtliche Handlungen unwirksam sind, die unter Verstoß gegen den Verfahrensstillstand unternommen wurden (Kemper Die U.S.- amerikanischen Erfahrungen mit Chapter 11 S. 96). Das U.S.-amerikanische Recht hat sich für einen umfassenden automatic stay und dementsprechend für einen weiten Handlungsbegriff entschieden, unter den das Weiterbetreiben eines Rechtsstreits fällt. Zur Durchsetzung eines vom automatic stay erfassten Rechtsstreits bedarf es nach U.S.-amerikanischem Recht einer gerichtlichen Aufhebung des Verfahrensstillstandes im Einzelfall (zum relief from stay vgl. Kemper S. 99 ff.). Trotzdem ist der gekündigte Arbeitnehmer nicht gehindert, den Kündigungsrechtsstreit aufzunehmen. Dies ergibt sich aus 337 ivm. 108 InsO und der verfassungsrechtlich gebotenen Effektuierung des Kündigungsschutzes. Zudem verstößt die Einschränkung der Aufnahmemöglichkeiten bei Kündigungsprozessen gegen den ordre public. Dieser Grundsatz erstreckt sich auf das Verfahrensrecht und begrenzt nach 343 Abs. 1 Nr. 2 InsO die Anerkennung des ausländischen Insolvenzverfahrens. ( ) 39 Nur ein effektiver Kündigungsschutz kann seine verfassungsrechtliche Aufgabe voll erfüllen. Das materielle Recht kann nicht losgelöst von seiner prozessrechtlichen Durchsetzbarkeit gesehen werden. Eine rasche gerichtliche Klärung ist gerade im Kündigungsschutzprozess im Interesse beider Parteien dringend geboten. ( ) 40 c) Das Erfordernis einer einzelfallbezogenen Aufhebung des Verfahrensstillstandes durch ein Gericht verstößt bei Kündigungsschutzprozessen zudem gegen den verfahrensrechtlichen ordre public. Insoweit ist nach 343 Abs. 1 Satz 2 Nr. 2 InsO das U.S.-amerikanische Insolvenzverfahren nicht anzuerkennen. Deshalb entfällt dieses mit den Grundrechten 11

15 unvereinbare Erfordernis zur Fortsetzung des Kündigungsschutzrechtsstreits. Der aus dem Rechtsstaatsprinzip in Verbindung mit den Grundrechten - im vorliegenden Fall Art. 12 Abs. 1 GG - abzuleitende Justizgewährungsanspruch verhindert, dass der Anspruch auf die gerichtliche Durchsetzung des materiellen Rechts unzumutbar verkürzt wird ( ). 10. Court of Appeal for Western Sweden , INSOL EIR-case register Nr 160 (Körling) The State requested the opening of insolvency proceedings against a natural person, Mr Rees, a British citizen residing in Switzerland. He was an employee of a company having its registered office in Switzerland. Mr Rees had lived in Switzerland since 1988 and received pension qualifying as income in Switzerland since He was a taxpayer in Switzerland, had a residence permit, a Swiss personal identification number, he was authorised to sign for his employer and had an executive position in the company. The amount of debtor s assets in the UK was unknown. Mr Rees was registered as being in debt with the Swedish Enforcement Authority. The court held that the COMI requirement in the Insolvency Regulation is important in two aspects: Firstly, to determine the EIR s applicability and secondly, the Member States jurisdiction to open insolvency proceedings. Important criteria for determing the debtor s COMI are those factors that are ascertainable by third parties. The citizenship of an individual is, in this respect, of little importance. As to the particular case of Mr Rees the court decided that his COMI was in Switzerland. The assets located in the UK were of little significance. Mr Rees COMI was therefore determined to be outside the EU, and the Insolvency Regulation was not applicable. Swedish law, however, gives jurisdiction to Sweden when, inter alia, the debt was accrued in Sweden. The court therefore found that Swedish courts had jurisdiction, based on domestic law, to open insolvency proceedings. 11. High Court of Justice London , [2005] EWHC 2125 (Ch) Four companies within the HIH Group, the second largest insurance group in Australia until its collapse in 2001, were incorporated in Australia. The companies conducted business. The Companies have been ordered to be wound up by the Supreme Court of New South Wales (the Australian Court). Winding-up petitions against the Companies have been presented to the High Court in England (the English Court) and joint provisional liquidators (the JPLs) have been appointed by the English Court. It is common ground that the most satisfactory way forward for the Companies and their creditors is to promote schemes of arrangement under section 411 of the Corporations Act 2001 in Australia and section 425 of the Companies Act 1985 in England. The schemes would be designed to 12

16 reflect the priorities applicable to the distribution of assets among creditors if the liquidations were to run their ordinary course. The Australian liquidators and the JPLs considered that, in light of the differences in the legal bases of distribution in the two countries, the schemes would have to reflect those differences in the distribution of assets realised in the Australian liquidations and in the distribution of assets realised in England. There would in effect be a separate fund comprising the English assets which would be distributed in accordance with English insolvency law. This view has been challenged by some creditors in Australia. They argued that the English Court would direct the JPLs, and the English liquidators in the event of a winding-up order, to transmit the assets realised by them to the Australian liquidators for distribution in accordance with Australian law. Both the Australian liquidators and the JPLs consider that this issue needs to be determined and on 14 June 2005 the Australian liquidators demanded payment to them of sums realised by the JPLs after deduction of costs and expenses. The English JPLs issued applications for directions in respect of each company to the English court. In the present case the court had to decide the following issue: Where a foreign company is in liquidation both in its country of incorporation and in England, and there are material differences in the basis of distribution of assets among unsecured creditors under the laws of the two countries, does the English court have power to direct the English liquidator to remit the proceeds of assets to the foreign liquidator for distribution by him in accordance with the law of that country? 112. I therefore conclude that in an English liquidation of a foreign company, the court has no power to direct the liquidator to transfer funds for distribution in the principal liquidation, if the scheme for pari passu distribution in that liquidation is not substantially the same as under English law. As previously remarked there is no decision which has directly considered the transfer of assets to a principal liquidation in which the assets will not be distributed according to rules for a pari passu distribution substantially the same as the English rules. However, I do not regard my conclusion in this case as an extension of the decision and reasoning of Sir Richard Scott V-C in Re BCCI (No.10) but as an application of it. A contrary conclusion would in my view be inconsistent with an essential part of the basis of his decision. I should add that, although of course the Australian liquidators and Amaca submit that Re BCCI (No.10) does not lead to this conclusion, they do not challenge the decision or any part of the Vice-Chancellor's judgment It should also be noted that the departure from the pari passu principle involved in the contribution agreement approved by Sir Donald Nicholls V-C in Re BCCI (No 3) was permissible because it was merely ancillary or incidental to an exercise of the statutory power to approve a compromise under part 1 of schedule 4 to the Insolvency Act 1986: see [1993] BCLC 1490 at (per Dillon LJ). It was only by the exercise of the powers in schedule 4 part 1 or by a scheme of arrangement that there could be a departure from the pari passu principle It is therefore apparent that I do not regard the reasoning in Re BCCI (No.10) as restricted to the collection of assets and the settlement of a list of creditors. It was not a decision that 13

17 while those features of the statutory scheme were mandatory, other substantive rules could be set aside or ignored. The statutory scheme makes no provision for an ancillary liquidation and applies in its entirety to the winding-up of a foreign company, subject in practice to its territorial limitations. Procedural rules may be disapplied to further the interests of creditors in a single global liquidation, but no such power exists as regards substantive rules. That requires, as Sir Richard Scott V-C held, that no orders can be made which have the effect of disapplying substantive rules. An order for transfer to the Luxembourg liquidators without provisions for setoff would have had that effect. So would an order for the transfer of funds to a principal liquidation for distribution on a different basis than that under the statutory scheme. ( ) 142. The significance of the EC Regulation for present purposes is that, even within the European Union, the position has not been reached that assets collected in an ancillary or "secondary" liquidation should be transferred to the liquidator in the principal liquidation for distribution in accordance with the latter's insolvency law, although nothing in the Regulations prohibits a transfer in accordance with the local law of a territorial insolvency proceeding. It expressly preserves the local distribution rules in a secondary liquidation, for reasons which are stated in recitals (11) and (12). Stays of secondary proceedings for periods of up to three months at a time may be ordered at the request of the liquidator in the main proceedings, but the court may require the liquidator "to take any suitable measure to guarantee the interests of the creditors in the secondary proceedings and of individual classes of creditors" and the court may terminate the stay if it no longer appears justified, in particular, by the interests of creditors in the main proceedings or in the secondary proceedings. What have been narrowed are the circumstances in which there can be an ancillary or secondary liquidation. The presence of assets or some other connection to the jurisdiction is insufficient in all cases to which the Regulation applies; the debtor must have an establishment in that state. 12. LG Frankfurt, , 3/5 O 73/00, TranspR 2006, 461 A German cargo insurance company (who was subrogated into the insured s rights) brought a claim for damages against a Canadian air transport company. While these proceedings were pending in Germany the Canadian company filed for reorganization proceedings under the Canadian Companies' Creditors Arrangement Act (commonly referred to as the "CCAA", proceedings similar to US Chapter 11 proceedings). In these proceedings the Canadian Court ordered a claims bar date for ordinary creditors. The claimant in the German proceedings failed to lodge its claim in the Canadian proceedings within the time limit set by the Canadian Court which (according to the respondent) led to the claim being extinguished. The Regional Court Frankfurt had to decide on the effects of the Canadian reorganization proceedings and the decisions taken in these proceedings on the claimant s claim. It held that insolvency proceedings at the debtor s COMI is in the best interest of all parties to insolvency proceedings and that the relevance of foreign insolvency proceedings follows from the universality principle underlying the German international insolvency law. According to the court the recognition of foreign insolvency 14

18 proceedings in Germany requires that the opening court was competent (viewed from the prespective of German law) and that no mandatory jurisdiction of German courts existed. In addition, the foreign insolvency proceedings shall not violate German public policy. Time limits for filing claims in insolvency proceedings that are shorter than those applicable in German proceedings are, however, compatible with German notions of justice, provided such time limits were sufficiently made public. 40. Die Beachtlichkeit des kanadischen Insolvenzverfahrens ergibt sich aus der Anerkennung des sogenannten Universalitätsprinzips im Rahmen des deutschen internationalen Konkurs- und Vergleichsrechts ( ). Die ältere Rechtsprechung ging zwar davon aus, dass aus 237 KO (seit ist die KO durch die Insolvenzordnung abgelöst, die bereits am im Bundesgesetzblatt verkündet wurde), der trotz Auslandkonkurses die Einzelvollstreckung in inländisches Vermögen des Gemeinschuldners zulässt, zu schließen sei, dass ausländische Insolvenzverfahren im Inland nicht anerkannt werden können (BGH, IPRspr. 1962/63 Nr. 226, S. 721; BpatG, IPRspr Nr. 206) Dieses Prinzip wurde jedoch aufgrund der internationalen Verflechtung der Volkswirtschaften bald in Frage gestellt und wird mittlerweile abgelehnt. 45. Ausländische Insolvenzverfahren sind aber nur dann anzuerkennen, wenn die Gerichte des Verfahrensstaates aus deutscher Sicht auch zur Abwicklung des Insolvenzverfahrens nach 328 Abs. 1 Nr. 1 ZPO zuständig sind, d. h. es darf keine international ausschließliche Zuständigkeit der deutschen Gerichte bestehen (Trunk, Internationales Insolvenzrecht, 1998, S. 268). Der BGH führt in seiner Entscheidung vom aus, die Anerkennungszuständigkeit bestimme sich maßgeblich nach 71 Abs. 1, 238 KO (BGHZ 95, 256, 270). 71 KO sieht mehrere Zuständigkeitsgründe vor. Überträgt man 71 KO auf die Anerkennungszuständigkeit, so sind Insolvenzverfahren, die im Staat der ausländischen Hauptniederlassung des Schuldners eröffnet und abgewickelt wurden, anerkennungsfähig. Da sich die Hauptniederlassung der Beklagten in Kanada befindet (vgl. Gewerberegisterauszug Bl. 86 d. A.), sind die kanadischen Gerichte auch hinsichtlich der Abwicklung des Insolvenzverfahrens zuständig. 46. Die Anerkennung des ausländischen Insolvenzverfahrens steht zwar unter dem Vorbehalt des deutschen "ordre public" ( 328 Abs. 1 Nr. 4 ZPO, Art. 6 EGBGB), der besagt, dass sich das Insolvenzverfahren in das Gesamtgefüge der deutschen insolvenzrechtlichen Vorschriften und Rechtsgrundsätze einpassen muss (BGH, NJW 1985, 2899; Trunk, Internationales Insolvenzrecht, 1998, S. 271; Pielorz, ZIP 1980, 239, 243; vgl. auch BGH, NJW 1985, 2900). Die hierdurch gesetzten Schranken stehen jedoch vorliegend einer Beachtung des kanadischen Insolvenzverfahrens nicht entgegen. 47. Die Schranke des "ordre public" hat für ein ausländisches Insolvenzverfahren insoweit Bedeutung, als dass dem ausländischen Konkurs dann eine Wirkung im Inland zu versagen ist, wenn dies den einzigen Weg zur Durchsetzung unverzichtbarer Teile der deutschen Rechtsordnung darstellt (Pielorz, ZIP 1980, 239, 243). 49. Bedenken im Hinblick auf die Einhaltung allgemeiner rechtsstaatlicher Grundsätze bei der Durchführung des kanadischen Insolvenzverfahrens, etwa im Hinblick auf die Regelung, nach der ein Beschluss gefasst werden kann, durch den die Ausschlussfrist zur Forderungsanmeldung 15

19 nicht bevorrechtigter Gläubiger ("Claims Bar Date for ordinary creditors") auf ein bestimmtes Datum festgelegt werden kann, bestehen hier jedoch nicht. Dies gilt auch im Hinblick auf die Regelung, dass ein Beschluss über Rechtsverluste ("Sanction Order") ergehen kann, wonach weitere, zum Zeitpunkt des Insolvenzverfahrens bereits bestehende, aber unangemeldete Forderungen ausgeschlossen werden. 57. Das Erlöschen von Forderungen im Falle einer unterbliebenen Anmeldung stellt eine gesetzliche Sanktion dar, durch die diese möglichst umfassende, gleichmäßige Schuldenregelung erreicht werden soll, und liegt damit trotz der schwerwiegenden Folge noch im Rahmen der Grundgedanken eines Konkursverfahrens. 13. High Court of Justice, Chancery Division Companies Court (Leeds), , ZIP 2004, 1769 The court had to decide on applications by HSBC Bank plc. ('HSBC') for administration orders in respect of two companies ('the companies') which are both incorporated outside England and Wales. The companies are Ci4net.com Inc. ('USA'), which is incorporated in the State of Delaware, and DBP Holdings Limited ('Jersey'), which is incorporated in Jersey. The applications have been opposed by the companies. The registered office of USA is in Delaware, and the registered office of Jersey is in St. Helier. HSBC contends that the CoMI of the companies is in London and that the presumption mentioned in article 3.1 of the EC Regulation has been rebutted by the evidence before the court. [15] In Re BRAC Rent A Car International Inc.1) Lloyd J. decided that, on both a literal and a purposive interpretation of the EC Regulation, a company could have a CoMI in England even though it was incorporated outside the European Union. [30] My conclusions are these. Although USA may have ceased to trade, there has not been a cessation of activities on its part. It is not dormant, nor is it close to being dormant. The connection between USA and London is still strong. USA has at premises leased by Criterion a base in London which is more than a mere postal address. The evidence that it has anything more solid in New York is unconvincing. In the draft SEC reports for 2001 and 2002 USA has presented itself to HSBC as having its principal executive offices in London. This is important because HSBC is the principal creditor of USA. HSBC is in London, and USA and HSBC negotiate with each other in London. If one compares the scale and importance of the activities carried on by USA in London with the scale and importance of its activities elsewhere, one is unable to identify any other specific place which, as it were, beats London into second place. The CoMI of USA was until at least April 2001 in London, and what has occurred since is not sufficient (even if supported by the presumption in favour of the place of the registered office) to justify a finding that the CoMI is now elsewhere. Accordingly there is, in my judgment, jurisdiction to make an administration order in respect of USA. 16

20 [33] On Mr. Cole's evidence, the business of Jersey, which was the funding of other companies in the group, has ceased. The presumption arising from the location of the registered office is supported by the fact that the account on which Jersey is indebted to HSBC is located in at the Jersey branch of HSBC. Against this, none of the three directors of Jersey is resident in Jersey, and two of them are resident in England. Since about December 2000 all communications between HSBC and Jersey have been sent to and from 32 Haymarket. All statements of account have been sent to 32 Haymarket. The telephone number provided by Jersey to HSBC to enable HSBC to contact Jersey was that of the Haymarket office. Meetings between HSBC and Jersey about Jersey's indebtedness were held in London throughout 2001 and It is not suggested that in recent years any activities on the part of Jersey were carried on at the registered office or elsewhere on the island. If, as appears to be the case, the only ongoing activities of Jersey relate to its indebtedness to HSBC, everything being done by Jersey has for the past few years been done in London. In my judgment, Jersey has, at least since Mr. Leech's bankruptcy in November 2002, and probably for two years or so before that, had its CoMI in London. 2. Legal Doctrine For the coordination of insolvency proceedings between EU and non-eu countries the adoption of the UNCITRAL Model Law on Cross-Border Insolvency has been suggested by INSOL Europe and several authors (see, e.g., Bufford, Revision of the European Union Regulation on Insolvency Proceedings Recommendations, IILR 2012, p. 341 [349]). This could be done by incorporating the Model Law into the EIR and including a provision subordinating the Model Law provisions to the EU-specific provisions for the recognition of insolvency proceedings totally within the EU (Bufford, IILR 2012, p. 349). Some EUcountries have already adopted the Model Law: UK, Spain, Poland and Romania. The Insol- Draft (Revision of the European Insolvency Regulation, provided by INSOL Europe [drafting Committee: Robert van Galen et al]) containes rules regarding the recognition of insolvency proceedings opened outside the EU and on questions of coordinating EU and non EU proceedings in Chapter VII (Articles 58-87). B. Insolvency Proceedings covered by the scope of the Regulation (Hybrid Proceedings) 1. Case Law a) ECJ 14. ECJ, Opinion of the Advocate General Kokott, , C-116/11, ZIP 2012, 1133 According to the Advocate General French Sauvegarde proceedings are covered by the scope of the EIR. 17