Insolvency law is driven by various policy considerations. This is why, as opposed to the domain of contract law, the room for private regulation in insolvency has always been limited. The 'choice' of an insolvency jurisdiction is not an exception. Since the adoption of the first European Insolvency Regulation (EIR) in 2000, determination of the international insolvency forum has been determined by the presence of the debtor's centre of main interests (COMI). In the EIR of 2015, COMI is defined as 'the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.' Conceptually, COMI cannot be controlled or chosen by the parties (debtors

Europe is experiencing the rise of restructuring proceedings, which has recently culminated in the adoption of the Restructuring Directive. While being a major achievement in harmonising substantive (pre)insolvency law in the EU, it lacks rules targeting restructuring of multinational enterprise groups. As a result, effectiveness of group reorganisations may be undermined. Nevertheless, some jurisdictions adopt innovative tools, facilitating group solutions. Among them – third-party releases. Such releases entail a total or partial discharge or amendment of claims against third parties, such as co-obligors, guarantors and collateral providers (typically, group members) in the insolvency or restructuring proceeding of the principal debtor.The diversity of approaches to third-party releases highlights their controversial nature. Such releases may frustrate legitimate expectations of creditors relying on cross-guarantees and other forms of cross-liability arrangements. Extending the effects of debt reorganisation to third parties in the absence of a separate insolvency proceeding may also run contrary to the longstanding views on corporate insolvency and entity shielding. This article argues that a single-entity-restructuring risks being short-sighted and that third-party releases are a matter of commercial necessity, synchronising legal responses with actual business models and better addressing the complexity of group interdependencies, realised through various intra-group liability arrangements.

Modern insolvency law instruments recognise the specificity of enterprise group insolvencies, premised on the existence of close operational and financial links between group members. It is widely accepted that

No abstract

No abstract