Stakhieieva-Bohovyk O. Cross-Border Insolvency: the Legal Concept of 'Centre of Main Interests of a Debtor'.

The thesis deals with the comprehensive research of the legal concept of 'centre of main interests of a debtor' (hereinafter, 'COMI'), which is the basis for solving cross-border insolvency cases. It presents a detailed analysis of the categorical meaning of the given legal concept, examines the key factors, which are decisive when rebutting the presumption on location of COMI, and provides proposals for improving the current legislation of Ukraine in the sphere of cross-border insolvency. The given thesis shows that COMI concept is the criterion for opening a dominant insolvency proceeding, i.e. the main insolvency proceeding. The absence of the exhaustive definition of COMI in the legislative acts raises vague interpretation thereof. As a consequence each national court bears a burden of its own interpretation of this concept. These actions inevitably result in jurisdictional conflict when the courts of different states find themselves competent to hear a case on cross-border insolvency of the same debtor. Thus courts of different states commence their own 'main' insolvency proceedings against the same debtor on the ground that COMI of a particular debtor is located precisely within their territory. Under the Council Regulation (EC) 1346/2000 on Insolvency Proceedings COMI concept determines the international jurisdiction of a court of a certain EU Member State, except Denmark, to commence the main insolvency proceeding, and provides for its automatic recognition within the territory of other EU Member States. Under the UNCITRAL Model Law 1997 on Cross-Border Insolvency COMI is decisive for granting the recognition of the commenced foreign main insolvency proceeding within the territory of the state where the request for recognition was filed. Both international acts use COMI concept for solving cross-border insolvency cases. Neither of them provide for a definitive and exhaustive definition of this concept to assist the courts in its interpretation in practice. In order to avoid jurisdictional conflict there is a need for a unified interpretation of the concept of COMI. The European Court of Justice (hereinafter, the 'ECJ') suggests looking at two criteria when assessing the real location of COMI, i.e. 'head office functions' and 'ascertainability by third parties'. It has been proved that the presumption of COMI location at the place of the registered office of a legal entity should be treated as a starting point when determining a real location of the debtor. In the given thesis it has been demonstrated that much attention is to be paid at the factor of exercising 'head office functions' and objective factors which are ascertainable by third parties (creditors). The presumption of COMI has to be effective once there is no dispute on real COMI location and other interested parties do not question it. The current legislation of Ukraine, which has recently been added by the institute of cross-border insolvency regulation, effective as of 19 January 2013, has some gaps to be fulfilled and improved in the future. Namely, there is a need for introducing COMI concept as a jurisdictional criterion for commencing the main insolvency proceeding (i.e. international exclusive jurisdiction) and a criterion for determination of the main insolvency proceeding.