1 Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L160/1. See generally on the Regulation Moss, G, Fletcher, I and Isaacs, S The EC Regulation on Insolvency Proceedings (Oxford: Oxford University Press, 2002 Google Scholar); Virgós, M and Garcimartín, F The European Insolvency Regulation: Law & Practice (The Hague: Kluwer Law International, 2004 Google Scholar); Fletcher, I Insolvency in Private International Law (Oxford: Oxford University Press, 2nd edn, 2005 Google Scholar) ch 7.

2 Moss, G and Paulus, C The European Insolvency Regulation – the case for urgent reform 2006 Insolvency Intelligence 1 Google Scholar; Sussman, O The economics of the EU's corporate-insolvency law and the quest for harmonisation by market forces’ in Freixas, X et al (eds) Handbook of European Financial Markets and Institutions (Oxford: Oxford University Press, 2008) p 238.Google Scholar

3 See Art 46 requiring the European Commission to present a report no later than 1 June 2012 on the application of the Regulation.

4 See recital 2: ‘The proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently and effectively’, and recital 8 which refers to ‘aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects’.

5 On cross-country differences in insolvency law, see Davydenko, S and Franks, J Do bankruptcy codes matter? a study of defaults in France, Germany, and the Uk’ (2008) 63 Journal of Finance 565 CrossRefGoogle Scholar; G Johnson Insolvency and Social Protection: Employee Entitlements in the Event of Employer Insolvency Organisation for Economic Cooperation and Development Report on Fifth Forum for Asian Insolvency Reform (FAIR), 27–28 April 2006, Beijing, China, available on the Word Bank Global Insolvency Law Database, available at http://www.worldbank.org/.

6 See generally the series of articles in ‘Colloquy: international bankruptcy’ (2000) 98 Michigan Law Review 2177. See also Bebchuk, L and Guzman, A ‘An economic analysis of transnational bankruptcies’ (1999) 42 Journal of Law and Economics 775 CrossRefGoogle Scholar; Buxbaum, H ‘Rethinking international insolvency: the neglected role of choice-of-law rules and theory’(2000) 36 Stanford Journal of International Law 23 Google Scholar; Perkins, L ‘A defense of pure universalism in cross-border corporate insolvencies’ (2000) 32 NYU Journal of International Law & Politics Google Scholar; Franken, S ‘Three principles of transnational corporate bankruptcy law: a review’ (2005) 11 European Law Journal 232 CrossRefGoogle Scholar.

7 See Balz, M The European Union Convention on Insolvency Proceedings’ (1996) 70 American Bankruptcy Law Journal 485 Google Scholar at 491.

8 But for the argument that universalism in practice is ‘politically implausible and likely impossible’ see Tung, F ‘Is international bankruptcy possible?’ (2001) 23 Michigan Journal of International Law 31 Google Scholar at 32. For the theoretical commitment of Belgian law to universalism, see Torremans, P Cross Border Insolvencies in EU, English and Belgian Law (The Hague: Kluwer Law International, 2002 Google Scholar) and German law to territorialism, see Luer, HJ ‘The revision of international insolvency law in Germany’ in Leonard, B and Besant, C (eds) Current Issues in Cross-Border Insolvency and Reorganisations (London: Graham & Trotman, 2004).Google Scholar

9 Section 541(a).

10 See Re Filipek (1983) 35 BR 339 where there is a discussion of the legislative history.

11 Cambridge Gas Transport Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc[2007] UKPC 26, [2007] 1 AC 508 at 516. See also Re HIH Casualty and General Insurance Ltd[2008] 1 WLR 852 for a discussion and application of the universalist principle.

12 For a case highlighting this point and US/UK jurisdictional conflict, see Re Cenargo International plc (2003) 294 BR 571.

13 For this reason, it is contended that universalism is simultaneously a bad deal for every country involved – see Tung, above n 8.

14 See generally Syska v Vivendi[2009] EWCA Civ 677.

15 Virgós, M and Garcimartín, F, The European Insolvency Regulation: Law & Practice (The Hague: Kluwer Law International, 2004 Google Scholar) at p 46.

16 See Rammeloo, S Corporations in Private International Law (Oxford: Oxford University Press, 2001 Google Scholar) at pp 11–16 and see also Fletcher, above n 1, pp 139–142.

17 See A Modern Regulatory Framework for Company Law in Europe: A Consultative Document of the High Level Group of Company Law Experts at pp 32–33, available at http://ec.europa.eu/internal_market/company/docs/modern/consult_en.pdf and see the comment at p 32: ‘The meaning of “real seat” varies; generally, if there is no substantial connection between the “central”, or “controlling” operations (particularly the place where the governing organs meet) and the jurisdiction of formation, then recognition by reference to that law is denied. Thus if a company is formed under the law of one Member State and moves its undertaking or central functions to another (which applies the real seat doctrine) without re-incorporation within that other, its legal security will be undermined’.

18 Fletcher, above n 1, p 367 and see also Enriques, L and Gelter, M Regulatory competition in European company law and creditor protection’ (2006) 7 European Business Organisation Law Review 417 CrossRefGoogle Scholar at 442 ‘is not entirely unlike real seat theory’.

19 For uncertainties in the application of the concept of ‘real seat’ see Fletcher, above n 1, pp 141–142 and see A Modern Regulatory Framework, above n 17, pp 32–33.

20 Balz, above n 7, at 504.

21 See generally Eidenmuller, H Free choice in international company insolvency law in Europe’ (2005) 6 European Business Organisation Law Review 423 CrossRefGoogle Scholar.

22 But see Ringe, W-G Forum shopping under the Eu Insolvency Regulation’ (2008) 9 European Business Organisation Law Review 579 CrossRefGoogle Scholar text accompanying fn 66: ‘The present tense (“conducts”) and the requirement of the “regular basis” impose conditions to the COMI that are difficult to fulfil when the debtor wants to move its COMI on a short-term basis’.

23 Case C-341/04 Re Eurofood IFSC Ltd[2006] ECR I-3813, [2006] Ch 508.

24 [2006] Ch 508 at 547.

25 [2004] BPIR 30. The case is discussed by Dawson, K The jurisdiction of the English courts under the Ec Regulation on insolvency proceedings 2003 Insolvency Lawyer 226 Google Scholar; Klempka, E The centre of main interest and the administration of Daisytek’ (2004) 1 Intl Corporate Rescue 27 Google Scholar. See now Re Stanford International Bank Ltd[2009] EWHC 1441.

27 Re MPOTEC Gmbh[2006] BCC 681 at 687.

26 See generally Mevorach, I The “home country” of a multinational enterprise group facing insolvency’ (2008) 57 ICLQ 427 CrossRefGoogle Scholar; ‘Centralising insolvencies of pan-European corporate groups: a creditor's dream or nightmare? 2006 JBL 468; Torremans, P Coming to terms with the COMI concept in the European Insolvency Regulation’ in Omar, PJ (ed) International Insolvency Law (Aldershot: Ashgate, 2008 Google Scholar) p 173 at p 184.

28 Case C-1/04 Re Staubitz-Schreiber[2006] ECR I-701. See also Shierson v Vlieland Boddy[2005] 1 WLR 3966.

29 See generally on the migration of companies in the context of the Regulation Omar, PJ European Insolvency Law (Ashgate: Aldershot, 2004) pp 49–86 Google Scholar and see also Moore, S Comi migration: the future 2009 Insolvency Intelligence 25 Google Scholar.

30 Article 26 of the Regulation permits the refusal of recognition where this would be manifestly contrary to a State's public policy, ‘in particular its fundamental principles or the constitutional rights and liberties of the individual’. For discussion see Re Eurofood IFSC Ltd[2006] ECR I-3813 at para 66.

31 [2005] BCC 277.

32 [2005] 1 WLR 3966.

33 See McCormack, G Jurisdictional competition and forum shopping in insolvency proceedings’ (2009) 68 Cambridge Law Journal 169 CrossRefGoogle Scholar.

34 See Armour, J Who should make corporate law? Ec legislation versus regulatory competition’ (2005) 58 Current Legal Problems 369 CrossRefGoogle Scholar.

35 See Skeel, D European implication of bankruptcy venue shopping in the Us’ (2006) 54 Buffalo Law Review 439 Google Scholar.

36 See Ringe, above n 22, text accompanying footnote 183. As Ringe acknowledges, however, a number of states apply a ‘real seat’ doctrine, with the law of the ‘real seat’ (however defined) rather than the law of the place of incorporation governing the internal affairs of the company. On this see generally Drury, R ‘The regulation and recognition of foreign corporations: responses to the “Delaware Syndrome”’ (1998) 57 Cambridge Law Journal 165 CrossRefGoogle Scholar.

37 On this point see generally Armour, above n 34, at 402; Skeel, D ‘Rethinking the line between corporate law and corporate bankruptcy’ (1994) 72 Texas L Rev 471 Google Scholar; Skeel, D ‘Corporate anatomy lessons’ (2004) 113 Yale Law Journal 1519 CrossRefGoogle Scholar.

38 Though it might add to the possibility of misalignments in the case of States applying a ‘real seat’ theory of company law.

39 Tiebout, C ‘A pure theory of local expenditures’ (1956) 64 Journal of Political Economy 416 CrossRefGoogle Scholar; Esty, D and Geradin, D (eds) Regulatory Competition and Economic Integration: Comparative Perspectives (Oxford: Oxford University Press, 2001 Google Scholar); Hayek, F ‘Competition as a discovery procedure’ (2002) 5 Quarterly Journal of Austrian Economics 10 Google Scholar.

40 In the context of employment law, the ECJ made specific reference to social dumping in Case 341/05 Laval un Partneri Ptd v Svenska Byggnadsarbetareförbundet[2007] ECR I-5751 para 103. See also Case C-438/05 International Transport Workers’ Federation, Finnish Seamen's Union v Viking Line ABP[2008] 1 CMLR 51.

41 See generally Dammann, J ‘Freedom of choice in European company law’ (2004) 29 Yale Journal of International Law 477 Google Scholar; Armour, above n 34; and Johnston, A. ‘Ec freedom of establishment, employee participation in corporate governance and the limits of regulatory competition’ (2006) 6 Journal of Corporate Law Studies 71 CrossRefGoogle Scholar. See also Barnard, C ‘Social dumping and race to the bottom: some lessons for the Eu from Delaware?’ (2000) 25 EL Rev 57 Google Scholar; Enriques and Gelter, above n 18, and Johnston, A and Syrpis, P Regulatory competition in European company law after Cartesio 2009 EL Rev 378 Google Scholar.

42 Articles 43 and 48 of the EC Treaty provide companies with freedom of establishment across the EC and for the relevant case-law, see case C-212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen[1999] ECR I-1459; Case C-208/00 Überseering BV v Nordic Construction Company Baumanagement GmbH[2002] ECR I-9919; Case C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd[2003] ECR I-10155; Case C-210/06 Re Cartesio Oktato es Szolgaltato bt[2009] 1 CMLR 50.

43 Re Daisytek-ISA Ltd[2004] BPIR 30.

44 See generally Bufford, S International insolvency case venue in the European Union’ (2006) 12 Columbia Journal of European Law 429 Google Scholar.

45 See The Financial Times 2 June 2009 at p 27: ‘The biggest industrial bankruptcy in corporate history kicked off yesterday with an early morning filing from a General Motors dealership in Manhattan's gritty Harlem neighbourhood. The stricken carmaker, although Michigan-based, chose the New York dealership because it needed to show that it was incorporated in the district where it wished to file for Chapter 11 protection’.

46 See generally Di Sano, S Comi: the sun around which cross-border insolvency proceedings revolve 2009 JIBLR 88 Google Scholar and 127.

47 See s 271(1)(b) of the New Zealand Companies Act 1993 and s 141 of the Irish Companies Act 1990. On the US position, see Baird, D Substantive consolidation today’ (2005) 1 Boston College Law Review 5 Google Scholar.

48 For up-to-date information see the UNCITRAL website available at http://www.uncitral.org/.

49 On the position in USA and Canada see Ziegel, J Corporate groups and crossborder insolvencies: a Canada–United States perspective 2002] 7 Fordham J Corporate & Financial L 367 Google Scholar at 376 who explains that procedural consolidation ‘is almost de rigueur’ in the reorganisations of corporate groups in the USA and Canada. In the UK, the same result may be achieved by the appointment of the same insolvency representative to two or more members of the same group.

50 Salomon v Salomon & Co[1897] AC 22; Adams v Cape Industries plc[1990] Ch 433; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry[1990] 2 AC 418.

51 See Skeel, above n 35, at 463 who suggests that if managers are permitted to make a venue choice at the last minute in anticipation of insolvency they may not face the same market discipline they may face if the location is determined in advance.

52 For the distinction, see Zywicki, T Is forum shopping corrupting America's bankruptcy courts?’ (2006) 94 Georgetown Law Journal 1141 Google Scholar.

53 LoPucki, L Courting Failure: How Competition For Big Cases is Corrupting the Bankruptcy Courts (Ann Arbor: University of Michigan Press, 2005 CrossRefGoogle Scholar) at p 256. For rebuttals of the LoPucki thesis there is a whole series of articles in (2006) 54 Buffalo Law Review and see also K Ayotte and D Skeel (2006) 73 University of Chicago Law Review 425.

54 See Skeel, D ‘What's so bad about Delaware?’ (2001) 54 Vand Law Review 309 Google Scholar (distinguishing between ‘Delaware enthusiasts’ and ‘Delaware sceptics’); Miller, H ‘Chapter 11 reorganization cases and the Delaware myth’ (2002) 55 Vand Law Review Google Scholar 1987; Zywicki, above n 52.

55 See LoPucki, L Where do you get off? a reply to courting failure's critique’ (2006) 54 Buffalo Law Review 511 Google Scholar at 512: ‘Lawyers and judges alike refer to the judges who drive cases away as “toxic” ’.

56 See Rasmussen, R and Thomas, R Timing matters: promoting forum-shopping by insolvent corporations’ (2000) 94 NorthWestern University. Law Review 1357 Google Scholar, who in fact argue that the US Bankruptcy Code would be more efficient if the law facilitated more forum shopping for bankruptcy venues.

57 See Miller, above n 54, at 1991–1995 (describing Delaware practice innovations).

58 (2004) 359 F 3d 866 at 871 and see also Re CoServ LLC (2002) 273 BR 487 at 498–499.

59 Section 503(b)(9) of the Bankruptcy Code. The relevant period is now 20 days.

60 See Resnick, A The future of the doctrine of necessity and critical-vendor payments in Chapter 11 cases’ (2005) 47 Boston College Law Review 183 Google Scholar at 204.

61 See Skeel, D ‘Creditors ball: the “new” new corporate governance in Chapter 11’ (2003) 152 U Pa L Rev 917 CrossRefGoogle Scholar; ‘the past, present and future of debtor-in-possession financing’ (2004) 25 Cardozo Law Review 101.

62 See, eg, Baird, D and Rasmussen, R Chapter 11 at twilight’ (2003) 56 Stanford Law Review 673 Google Scholar at 675–676.

63 Creditors, whose bargaining position is so weak that they cannot adjust their terms to take into account the new bankruptcy realities, may be referred to as ‘non-adjustable’ creditors.

64 This is done through amendments of s 503 of the Bankruptcy Code.

65 See LoPucki, above n 53, p 14. For an argument that the charge of corruption may be seen as an attention-seeking device, see Tabb, C Courting failure – the effects of venue choice on big bankruptcies’ (2006) 54 Buffalo Law Review 467 Google Scholar.

66 Section 1104(c)(2), at first glance, requires the appointment of an examiner where the company's unsecured, non-trade and non-insider debt exceeds $5m, ie in every medium to large case ‘[b]ut examiners are not routinely requested or appointed in such cases’; see Warren, WD and Bussel, DJ Bankruptcy (New York: Foundation Press, 7th edn, 2006) p 601 Google Scholar.

67 Baird, D Elements of Bankruptcy (New York: Foundation Press, 4th edn, 2006) p 22 Google Scholar.

68 See Tabb, above n 65.

69 Section 1104(e) appears to require the US trustee to move for the appointment of a trustee if there are reasonable grounds to suspect that current members of the governing body of the debtor, etc participated in actual fraud, dishonesty or criminal conduct in the management of the debtor or the debtor's public financial reporting.

70 Section 1129.

71 See LoPucki, L and Doherty, J Why are Delaware and New York bankruptcy reorganizations failing?’ (2002) 55 Vand Law Review 1933 Google Scholar at 1983–1984.

72 See Ayotte, K and Skeel, D An efficiency-based explanation for current corporate reorganization practice’ (2006) 73 University of Chicago Law Review 425 Google Scholar‘Abstract’.

73 For LoPucki's replies to his critics, see above n 55, and his article with Doherty, Joseph Delaware bankruptcy: failure in ascendancy’ (2006) 73 University of Chicago Law Review 1387 Google Scholar.

74 See LoPucki, above n 55, at 529.

75 LoPucki, L and Doherty, J The determinants of professional fees in large bankruptcy reorganization cases’ (2004) 1 Journal of Empirical Legal Studies 111 CrossRefGoogle Scholar at 113 and by the same authors ‘Professional overcharging in large bankruptcy reorganization cases’ (2008) 5 Journal of Empirical Legal Studies 983.

76 Cole, M “Delaware is not a state”: are we witnessing jurisdictional competition in bankruptcy?’ (2002) 55 Vand Law Review 1845 Google Scholar at 1866.

77 See generally Eisenberg, T and LoPucki, L ‘Shopping for judges: an empirical analysis of venue choice in large Chapter11 reorganizations’ (1999) 84 Cornell L Rev 967 Google Scholar and see also LoPucki, L and Kalin, S ‘The failure of public company bankruptcies in Delaware and New York: empirical evidence of a “race to the bottom”’ (2001) 54 Vand Law Review 231 Google Scholar.

78 Only in Hans Brochier has there been a reported decision –[2007] BCC 127 – but the other cases have been extensively reported in the professional press – see, eg, Legal Week 22 February 2007, where it is commented ‘forum shopping never quite went out of fashion. One thing has changed though – the language. “Migration” has become the new forum shopping’. See generally Hickmott, R ‘Forum shopping is dead: long live migration!’ (2007) 5 J of Intl Banking and Financial Law 272 Google Scholar.

79 On company voluntary arrangements see Insolvency Act 1986, Part 1.

80 See ‘German law reform could halt migration’Global Turnaround July 2007; Ringe, above n 22; Moore, S Comi migration: the future 2009 Insolvency Intelligence 25 Google Scholar.

81 See M Becht, C Mayer and H Wagner Where do Firms Incorporate? (CEPR Discussion Paper No 5875, 2006), available at http://ssrn.com/abstract=953820, who estimate that between ‘2002 and 2005 over 55,000 new private limited companies have been set up from other E.U. Member States in the U.K. In absolute terms the largest flows of companies come from Germany, France, the Netherlands and Cyprus, with over 26,000 firms from Germany alone. Most of the new foreign limited companies are small, having only one or two directors’.

82 See ss 43 and 44 of the Companies (Amendment) (No 2) Act 1999.

83 Section 10 of the Companies (Amendment) Act 2009 replaces the requirement of residence in Ireland with residence in a EEA Member State. According to the explanatory memorandum accompanying the Act, ss 43 and 44 of the 1999 Act are being amended ‘in order to meet the concerns of the European Commission that certain elements of the current provisions are not compatible with the EC Treaty’.

84 See the statement of the Minister of State at the Department of Enterprise, Trade and Employment (Mr Treacy) on 27 May 1999 during the Second Stage reading of the legislation – 505 Dail Debates 1999 – and also accessible through the Irish Parliament website, available at http://www.oireachtas.ie/.

85 See generally De Vareilles-Sommières, P (ed) Forum Shopping in the European Judicial Area (Oxford: Hart Publishing, 2007 Google Scholar).