Opening of the insolvency proceedings in the court of the Republic of Lithuania under European Union and Lithuanian law

Straipsnyje analizuojamas 2000 m. gegužės 29 d. Europos Tarybos reglamento (EB) Nr. 1346/2000 dėl bankroto bylų nuostatų bei Lietuvos teisės aktų taikymas iškeliant bankroto bylą Lietuvos Respublikos teisme subjektui, kurio bankrotas turi tarptautinio bankroto požymių. Taip pat nagrinėjami bankroto bylos iškėlimo probleminiai aspektai ir pateikiami galimi problemų sprendimo būdai ir kryptys.When deciding on the opening of the insolvency proceedings, first of all, Lithuanian court must analyse whether the facts indicated in the filing are within the scope of the Regulation. The court must take into account its territorial application, types of proceedings and subjects which are covered by the Regulation, as well its application in time. Moreover, The court must as certain on its international jurisdiction to open insolvency proceedings according to the Regulation. Following paragraph 1 of the article 3 of the Regulation, Lithuanian court has jurisdiction to open insolvency proceedings if the centre of main interests of the debtor is in the territory of Lithuania. Lithuanian legal acts which are now in force stipulate that bankruptcy and restructuring proceedings may be instituted only against legal persons registered in Lithuania. In the opinion of the author, such "registration" requirement is incompatible with Regulation; therefore, it is proposed to amend legal acts with provision which would make it possible to institute bankruptcy and restructuring proceedings against foreign legal persons which have the centre of main interests in Lithuania. In case the debtor does not have its centre of main interests in Lithuania, the court would be obliged ex officio to verify if there is no establishment of the debtor in order independent territorial proceedings would be opened. Lithuanian court would have jurisdiction to open secondary or independent territorial proceedings if the debtor has an establishment in Lithuania. Since the law applicable to secondary proceedings is the law of the state where the secondary proceedings have been opened, according to present Lithuanian legislation, secondary or independent territorial proceedings can be instituted only against independent legal persons. For the purpose of protecting Lithuanian creditors and making administration of the debtor's property more effective it would be expedient in Lithuanian legislation to stipulate the possibility to institute territorial proceedings for foreign companies provided they have establishment in Lithuania. It is pointed out that there are no requirements established in Lithuanian legal acts for the content of the decision to open insolvency proceedings. Taking into consideration the practice of the other member states of the European Union it is recommended to establish requirements for content of the decision to open insolvency proceedings in Lithuanian legislation. The court should indicate the type of the proceedings - whether main or secondary proceedings are opened, as well as to justify its international jurisdiction. The end of the article contains short analysis of the court's jurisdiction for judgments which are delivered directly on the basis of the insolvency proceedings and arc closely connected with such proceedings