INTRODUCTION

The purpose of this paper is to examine the relation between the Insolvency (Recast) Regulation and the Brussels I (Recast) Regulation. This relation is notoriously unclear (‘einen der umstrittensten und schwierigsten Komplexe des Internationalen Insolvenzrechts’1). In order to shed some light on the matter, the boundary between both regulations will be examined.

A complicating factor in this respect, is the evolving and particular nature of insolvency proceedings. The evolving nature of insolvency proceedings is illustrated by a clear shift from liquidation to reorganization. Modern insolvency proceedings are no longer (solely) focused on the liquidation of (the assets of) the debtor. Instead, across the European Union a trend can be witnessed whereby insolvency proceedings are used to reorganize (the enterprise of) the debtor. This shift has led to the introduction of all kinds of new insolvency proceedings, with different characteristics than traditional insolvency proceedings. The particular nature of insolvency proceedings relates to creditors (but also creditors between themselves) and debtors trying to resolve a financial and/or economic problem. The outcome of this process affects other stakeholders (in particular employees). This is the core of insolvency proceedings. Related to this core are a multitude of ‘related’ proceedings, which in principle exist autonomously from insolvency proceedings, but frequently arise in the context thereof.10

In order to understand the present, it is good to understand the past. Therefore, the structure of this paper is chronological. Three stages are distinguished. First, I briefly look at the situation before the Insolvency Regulation and the Brussels I Regulation. Secondly, I consider the relationship between the Brussels I Regulation and the Insolvency Regulation. Lastly, I examine the current situation.

PHASE 1: THE BRUSSELS CONVENTION

It is well-known that the 1968 Brussels Convention did not apply to ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’. These proceedings were not excluded from the scope of application because they were considered irrelevant for international business. Instead, the idea was to cover them with a separate instrument, taking into account the special nature of the matter and the profound differences between the Contracting States of the Brussels Convention, in particular with respect to the question of what actions or disputes fall within the jurisdiction of the court opening the insolvency proceedings.