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8 ICJ 1 (2022)

handle is hein.journals/icjuris8 and id is 1 raw text is: International Comparative Jurisprudence 2022 Volume 8 Issue 1 ISSN 2351-6674 (online) DOI: i1 International Comparative Jurisprudence THE COORDINATION OF MAIN AND SECONDARY INSOLVENCY PROCEEDINGS IN EUROPEAN UNION INSOLVENCY LAW Remigijus Jokubauskas Mykolas Romeris University, Lithuania E-mail: Marek Swierczynski2 University of Cardinal Stefan Wyszynski, Poland E-mail: m._wierzynkh uks ud L Received: 14 April 2022; accepted: 16 May 2022 DOI: i _ 0 Abstract. This article focuses on the coordination of main and secondary insolvency proceedings in cross-border insolvency cases. The authors analyse how main and secondary insolvency proceedings should be coordinated in different aspects of these proceedings, namely: the opening of insolvency proceedings, the exercise of creditors' rights, and the treatment of the debtor's assets. The procedural peculiarities of the opening of secondary insolvency proceedings are also discussed. The article also examines how insolvency practitioners and courts in parallel cross-border insolvency proceedings should coordinate their actions to ensure proper response to the debtor's insolvency problems. Moreover, the authors assess the relevant case law of the Court of Justice of the European Union and whether is compatible with the goal of effective cross-border insolvency proceedings. Keywords: cross-border insolvency, European Union law, main insolvency proceedings, secondary insolvency proceedings Introduction The cross-border insolvency proceedings established in Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (hereinafter - EIR) are based on the modified universalism approach, which includes main insolvency proceedings having a universal scope (Recital 22 of the EIR) and secondary insolvency proceedings which have a territorial scope (Recital 23 of the EIR). In private international law, modified universalism is regarded as the dominant approach to cross-border insolvency proceedings and is based on the centralisation of all insolvency procedures in one insolvency court (Mevorach, 2021, p. 286). However, there is the possibility for opening secondary insolvency proceedings which allow the decentralisation of insolvency proceedings in courts of different states. Though this decentralisation of insolvency procedures may impede the effectiveness of the administration of insolvency, there are various legal and economic factors which support the opening of secondary insolvency proceedings. The differences in legal regulation, peculiarities of the domestic market, and business cultures lead to a significant diversity of approaches to insolvency proceedings in the member states of the European Union. These differences become sheer in cross-border insolvency proceedings in which the debtor may have assets and creditors in different jurisdictions. Thus, it is important to assess how main and secondary insolvency proceedings should be coordinated to provide the most effective solution to the debtor's insolvency problems despite defragmentation of regulation of insolvency proceedings in the member states. PhD in Social Sciences (Law), researcher at Mykolas Romeris University, an expert consultant to the Council of Europe. 2 Professor of Civil and Private International Law, University of Cardinal Stefan Wyszynski in Warsaw (Poland), Institute of Legal Studies, an expert consultant to the Council of Europe. 1

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