Part of the JCOERE Project’s remit is to provide a resource for judges in Europe to help them achieve their obligations to co-operate under the EIR Recast. We have accomplished this by creating a series of case studies that examine practical issues occurring in the context of judicial co-operation in cross-border insolvency and restructuring generally that should be of assistance when considering issues that may arise within preventive restructuring frameworks. The case studies also consider the application of the EIR Recast, which as of the autumn of 2020 has not yet been applied in a cross-border insolvency or restructuring case dealing with issues of court-to-court co-operation. In addition, where applicable the extant cooperation recommendations and guidelines have been discussed in the context of how they can be utilised to aid co-operation in the scenarios presented by the cases studied. These case studies are intended to be a practical resource that the project target audience can refer to when dealing with cases that necessitate co-operation between courts among the Member States. They have been categorised as cases addressing jurisdiction of main proceedings; cases addressing transactional claims, such as actio pauliana; cases utilising protocols or otherwise demonstrating methods of cooperation, including cases involving judicial assistance; and a hypothetical case study presenting issues similar to those in the previous three categories.

Cases Directly Addressing Jurisdiction

This collection of cases are examples of where the jurisdiction for main proceedings has been disputed between different Member States. They focus mainly on the proper establishment of a debtor’s centre of main interests (COMI), providing clarity for the presumption under Article 3(1) on the presumption of registered office and the means by which this can be rebutted: by objective factors ascertainable to third-parties. These cases are important examples of how cross-border cooperation can be challenged in the event that parties from different Member States compete for jurisdiction of main proceedings.

Transactional Cases

There are a number of legal actions that can arise related to a company’s financial distress. Where an insolvency or restructuring process is also engaged and covered by the European Insolvency Regulation (recast) 848/2015, those actions that are closely connected with and directly derived from those proceedings will be heard in the jurisdiction of main proceedings (Article 6 EIR Recast). However, there are a wide variety of claims that can fall within the concept of ‘closely connected’ among the Member States, particularly avoidance actions (actio pauliana), which have been the subject of numerous references to the CJEU to determine jurisdiction. These cases exemplify efforts to potentially avoid the jurisdiction of main proceedings, effectively impeding cross-border co-ordination in a single jurisdiction of insolvency related actions.

Protocols and Judicial Assistance

The obligation for courts to cooperate set out under the EIR Recast in Article 42 has yet to be tested in the CJEU. How this enhanced obligation to cooperate between Member State courts will be achieved within the rules of domestic legal systems is not yet clear and while guidelines such as the JudgeCo Principles and the Court Cooperation Guidelines (and its revision forthcoming in 2020) provide some approaches to this conundrum, instances of international cooperation through judicial assistance and the use of protocols may be instructive. This collection of cases are examples of situations in which an environment has been created to achieve judicial assistance or cooperation and while these cases are common law in nature, they provide examples of how the obligation to cooperate could be met.

Hypothetical Case Studies

The case study in this category was first presented for consideration at the Judicial Wing at the INSOL Europe annual Conference in Copenhagen in September 2019 by the JCOERE team. It is derived from the Irish case, Re Kitty Hall Ltd [2017] IEHC and [2017] ICEA 247. This hypothetical study presents issues similar to those in the previous three categories, including the recognition of main insolvency proceedings and cooperation with the procedure undertaken there, including a stay; the obligation to cooperate in relation to secondary proceedings; and where the jurisdiction to hear actions that may be closely connected to the main proceedings should be.