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Lloyd's Maritime and Commercial Law Quarterly

JURISDICTION FOR INSOLVENCY-RELATED PROCEEDINGS CAUGHT BETWEEN EUROPEAN LEGISLATION

Anatol Dutta *

The stock of European legislation in the area of private international law is growing steadily. The pointillist technique employed by the European legislator, however, necessarily entails friction between the different legislative acts. One illustrative example, which shall be examined in this article, concerns jurisdiction for insolvency-related proceedings. Such individual proceedings which derive directly from the bankruptcy and are closely connected to collective insolvency proceedings could be governed by different European regulations or even by national law.

I. INTRODUCTION

Jurisdiction in civil and commercial matters is widely regulated within Europe by the Brussels I Regulation.1 Article 1.2(b) of that Regulation stipulates that the European rules do not apply to “bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings”. The Court of Justice of the European Communities (ECJ) has held in its famous decision in Gourdain v. Nadler 2 that this exception does not only exclude collective insolvency proceedings from the Brussels regime but also individual insolvency-related proceedings as far as they derive directly from the bankruptcy or winding-up and are closely connected with the insolvency proceedings. From a United Kingdom perspective, this broad notion of insolvency proceedings covers several actions by a liquidator based on the Insolvency Act 1986,3 aiming, for example, to establish the liability of a company’s director for contribution to the company’s assets because of wrongful trading (s 214), or to set aside certain undervalue transactions of the debtor (s 238), or to restore any preferences given by the debtor (s 239).4 Not affected by Art 1.2(b), though, are proceedings by the liquidator to collect pre-liquidation debts;5 they are not

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