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Optimal Allocation Of Law-‐Making Power Over Bankruptcy Law In "Federal" And "Quasi-‐Federal" Legal Systems: Is There A Case For Harmonizing Or Unifying Bankruptcy Law In The E.U.?, Federico M. Mucciarelli
Optimal Allocation Of Law-‐Making Power Over Bankruptcy Law In "Federal" And "Quasi-‐Federal" Legal Systems: Is There A Case For Harmonizing Or Unifying Bankruptcy Law In The E.U.?, Federico M. Mucciarelli
Federico M. Mucciarelli
In “federal” or “quasi-federal” legal systems, the competence over bankruptcies can be allocated either to the “federal' level” or to the “member states”. In this regard, the E.U. and the U.S. follow two different paths: while in the U.S. bankruptcy law is federalized, in the E.U. it is governed by member states. E.U. law has only unified choice-of-law and choice-of-forum criteria through a Regulation enacted in 2000, according to which, the main insolvency proceeding is governed by the jurisdiction of debtor’s “Centre of Main Interests” (“COMI”). This mechanism was meant to grant legal certainty and to avoid forum shopping, but …
Freedom Of Reincorporation And The Scope Of Corporate Law In The U.S. And The E.U., Federico Mucciarelli
Freedom Of Reincorporation And The Scope Of Corporate Law In The U.S. And The E.U., Federico Mucciarelli
Federico M. Mucciarelli
In the U.S. corporations can be incorporated in any of the 50 states and can “reincorporate” afterwards in any other state. In the E.U. such freedoms are a recent achievement: In the last decade, first the European Court of Justice has liberalized initial incorporations and only in 2005 the cross-border directive has open the doors to freedom of midstream reincorporation from one member state to another. Midstream reincorporations, however, in the E.U. have a much different impact than on the other side of the Atlantic. In the U.S., indeed, the competence of the state where a company is incorporated is …
Transfer Of Company’S Registered Office And Forum-Shopping In International Insolvency Cases: An Important Decision From Italy, Federico M. Mucciarelli
Transfer Of Company’S Registered Office And Forum-Shopping In International Insolvency Cases: An Important Decision From Italy, Federico M. Mucciarelli
Federico M. Mucciarelli
The Italian Supreme Court (Corte di Cassazione) has issued an important decision on companies’ freedom of establishment in the European Union (EU) and on jurisdiction over insolvency proceedings. It was a typical forum-shopping case in insolvency situations, in which a company decides to shift its registered office abroad before a court from its original country declares the insolvency. The Cassazione did not apply EC-Regulation 1346/2000 on cross-border insolvency, but declared the company as liquidated because of the transfer of the registered office. This solution leaves many questions unclear, both under EC-freedom of establishment and under jurisdiction rules for cross-border insolvency.