EuroEconomica, Vol 23, No 2 (2009)

Particular aspects on the cross-border insolvency procedure

Alexandrina Zaharia


The insolvency procedure is a collective procedure that takes into account the rights of all the creditors at the same time and takes place under the control and supervision of justice. The regulation concerning the insolvency procedures applies to the procedures determined by the debtor’s insolvency in which his total or partial discontinuance in the specific activity takes place and in which a liquidator is assigned. This community act does not apply to the insolvency procedures of insurance companies that provide services involving possession of funds or securities of third parties and collective investment organs. The titular of the request opening this procedure can be any creditor that has a certain liquid receivable that corresponds to the threshold established by law in the member state in which the judicial instance in referred to. The international competence of opening an insolvency procedure belongs to the state in which “the center of the debtor’s main interests is located” and the applicable law of the procedure is the member state’s law in which the procedure was open. In Romania, the law in this context is Law no.85/2006 on insolvency procedure, modified. In solving the possible competence conflicts that can appear related to the opening of the main procedure, “the center of the debtor’s main interests” criteria is used, as defined in the Statute. It regulates the opening of a single main procedure and several secondary procedures the latter on the condition that the debtor’s headquarter is located in the member state in which the opening of the secondary procedure is requested. Any decision of opening an insolvency procedure issued by a competent instance in a member state is recognized in all the other member states, as soon as it produces its effects (except the cases expressly mentioned in the community act, that has to be strictly interpreted and applied), even if the decision is final or not.


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