Il coordinamento tra procedure d'insolvenza basato sulla prevalenza della procedura principale nel regolamento (UE) n. 2015/848 di rifusione

This paper discusses the amendments introduced by Regulation (EU) No. 2015/848 on insolvency proceedings (recast) as concerns the coordination among insolvency proceedings. The recast Regulation on the one hand maintains the general framework of the pre-existing Regulation (EC) No. 1346/2000, based on the co-existence of the main insolvency proceedings, to be opened in the Member State where the debtor possesses the centre of his main interests (COMI), and secondary insolvency proceeedings, which may be opened in another Member State where the debtor possesses an establishment, with effects limited to the debtor’s assets present within that Member State. On the other hand, the recast Regulation introduces a series of amendments, inspired to the objective of securing the prevalence of the main insolvency proceeedings. These amndments tend to favour the concentration within the main insolvency proceedings of the whole of the operations inherent in the disposal of the insolvency of the debtor, so as to reduce as far as possible the need for secondary insolvency proceedings to be opened in another Member State. This aim is concretely pursued by granting extensive powers to the administrator of the main insolvency proceedings, among which, the power of undertaking to apply, as concerns the protection of creditors’ rights in respect of assets located in a Member State where secondary insolvency proceedings could have been opened, the same law as would have applied in case such proceedings were opened (s.c. “synthetic” or “virtual” secondary insolvency proceedings). The recast Regulation contains also express provisions dealing with jurisdiction on actions directly deriving from insolvency proceedings and closely linked with them, favouring their joinder, either before the courts of the Member State competent for the insolvency proceedings as such, or before the courts competent for other actions in civil and commercial matters to which they may be related. The new Regulation refrains instead from regulating the relationships between the insolvency proceedings and pending lawsuits or arbitral proceedings concerning assets of the debtor, which are left for domestic law to regulate, thereby exposing the uniformity in the application of the Regulation to the risk inherent in the differences among Member States’ laws on the subject. Furthermore, reflecting a traditional, strictly inter partes approach, the new Regulation, unlike the Brussels I recast Regulation, falls short of addressing the problems of coordination which might arise with proceedings pending before third country courts