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Blog 2018

2018-01-doc6 III Prize 2018 in Interntional Insolvency Studies

The International Insolvency Institute (III) has announced its 2018 Prize in International Insolvency Studies. This Prize comprises a Gold Medal Prize for the winning submission as well as a Silver Medal Prize, a Bronze Medal Prize, and several Finalist Prizes. As its continued standard, the III Prize is awarded for original legal research, commentary or analysis on topics of international insolvency and restructuring significance and on comparative international analysis of domestic insolvency and restructuring issues and developments. The Prize Competition is open to full and part-time undergraduate and graduate students and to practitioners in practice for nine years or less. Entries must not have been published and must be available to be posted on the International Insolvency Institute website at Medal-winning entries will be considered for publication in the Norton Journal of Bankruptcy Law and Practice (West) and for inclusion in the Westlaw electronic database. Entries may be of any length but a limit of 20,000 - 30,000 words is preferred. Entries must be received by March 31, 2018.
Entries will be judged by a distinguished panel of leading international insolvency academics and practitioners. The Gold Medal winner will be awarded with US $3,000 as well as being honoured at the III's Eighteenth Annual International Insolvency Conference in New York on September 23-25, 2018. All Medal Winners and Finalists will be invited to attend the Conference and will be provided with complementary Conference registration. Medal Winners will also be nominated to Class VII of the III NextGen Leadership Program which will convene in New York in September, 2018 during the III's 2018 Conference. For further details and the terms of the III Prize in International Insolvency Studies go to or contact Franca Tibando, Executive Director of the International Insolvency Institute NextGen Leadership Program, at ++ 1 416-918-7301 or

2018-01-doc5 ABI Writing Competition 2018

Prof. Juliet M. Moringiello, Widener University Commonwealth Law School, on behalf of the American Bankruptcy Institute (ABI), attrached my attention for opportinuties for insolvency law students. They are invited to participate in this year’s American Bankruptcy Institute Law Student Writing Competition. European students should be encouraged to enter a paper from this or last semester by: (i) creating your account at, and (ii) by logging in and submit your paper at It's certainly worth a try as winners will have a global platform to be seen to be performing, receive a portion of $4,000 in cash prizes, have the opportunity to be published in the ABI Journal and get a free membership to ABI.

2018-01-doc4 City Univ conference 27th April 2018

London City University's Cross-Border Corporate Insolvency and Commercial Law Research Group organises its second conference on 27 April 2018. All scholars, researchers and postgraduate students are invited to participate. The Insolvency Conference welcomes submissions in all areas of Insolvency Law. The inivation says that presenters should expect to have up to 30 minutes for their presentation even if the precise duration will be confirmed nearer the time. Time for discussion and Q&A will be allocated. Intending contributors and speakers should prepare an abstract (250 words) and send it to Mr. Eugenio Vaccari at All submissions must include the presenter's institution, a contact address, an email address and a contact phone number. The deadline for submission is 25th February 2018. There are some conference Fees involved, to cover the cost of materials, equipment, venue, lunch, and refreshments. Information and registration via

2018-01-doc3 NIKI's COMI continued

On 8 January 2018 the Landgericht Berlin has, on the basis of an immediate appeal against the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law, the debtor) overruled the decision of the District Court of Charlottenburg of 13 December 2017, confirmed by that court on 4 January 2018 (see, with the result that international jurisdiction is not in Germany, but in Austria. (I am thanking my collegue prof. Stephan Madaus for providing me with this decision). Where it is possible to appeal this decision of the Landgericht to the Federal Court of Justice, the aforementioned decision of the District Court Charlottenburg still applies.
In support of its decision, the Landesgericht explained its view on the debtor's center of main interest (‘COMI’) and the way the European Insolvency Regulation (EIR 2015) has stuctured this requirement for international jurisdiction, as well as the way in which the presumption (that a debtor-company has its COMI in the Member State of its registered office) can be rebutted and the criteria that apply to refute this presumption (see Article 3 EIR 2015, second paragraph: ‘… in the absence of proof of the contrary’).

NIKI brings forward 12 point of departure for its argument that its COMI is in Germany. Creditors, however, present 10 points of view, resulting in their statement that COMI is in Austria.

After having decided that the objections are well-founded, admissible and submitted in time and the objecting party is competent, the Landesgericht struggles with the fact that not all factors presented (on either side) are decisive, that the factors that matter do not provide a uniform picture and that a clear dominance of certain factors, pointing to German or Austria, can not be detected. It then presents 12 (a-k, with twice an ‘h’) points of departure for its assessment, based on CJEU court cases (Eurofood, Interedil, Rastelli) and German literature (specifically Mankowski and Paulus). Its arguments require further study. Here it suffices to say that the Landesgericht Berlin adheres to the view that the various factors should be considered in their entirety. The place from which the essential business activities of the NIKI would be controlled, namely Berlin, was not a solely decisive criterion. The fact that Air Berlin had been practically the only customer, and thus the sales generated especially in Germany, was not automatically influential. For having COMI in Austria arguments are that the debtor maintains offices in Vienna, in which the financial accounting is conducted. Likewise, the location of the competent supervisory authority is in Vienna, as the debtor has an Austrian operating license and the airworthiness of the aircraft is monitored from there. In addition, approximately 80% of the employment contracts concluded by the debtor are subject to Austrian employment law. Also NIKI’s own behavior indicates that she assumes a COMI in Austria. She had not informed her creditors and the public that she had relocated her COMI to Germany. Furthermore, in an insolvency proceedings opened for several months at the request of a creditor before the Korneuburg Regional Court in Austria, it did not raise the objection that there was no international competence in Austria.
The latter points do not seem to me ‘objective’ factors. Anyway, we wait and see what the Federal Court of Germany will decide, because this case typically will go through the full German Court system. In its core the legal question is: what is neccesary to rebut the presumption that the registered office is the COMI. This feels like a Eurofood question, so may we expect that the Court of Justice of the EU will have the final word?

2018-01-doc 2 NIKI's COMI

From newspapers we know that NIKI Luftfahrt is in financial trouble. Attempts from third parties to buy all or a significant amount of assets are ongoing. These include takeoff- and landing slots in places such as Vienna, Munich, Palma de Mallorca and Zurich. There also is (evidently) a legal battle. Where is NIKI located? Or better: which is the cente of main interest (COMI) of NIKI Luftfahrt GmbH nach östereichischem recht (NIKI Air GmbH, establishe according to Austrian company law)? It is under corporate control of Air Berlin PLC & Co. Luftverkehrs KG (Air Berlin), active in Germany. But is its COMI in Germany?
On 4 January 2018 the Charlottenburg District Court upheld its decision of 13 December 2017 in which it had decided that NIKI’s COMI was in Germany. I just note some legal arguments.

Article 4 EIR 2015 determines the examination of international jurisdiction. In my book International Insolvency Law Part II 2017/10622h I suggest courts to be guided by six steps, four of which are:
1 Object: international jurisdiction; The court seised with a request to open (main or secondary) insolvency proceedings needs to ascertain its international jurisdiction without any party asking for an examination of the court’s jurisdiction. The court’s role is discretionary, in that interested parties, such as creditors, may send information to the court, but they cannot interfere in the court’s building up its decision. It should, however, be noted that Article 4 EIR 2015 only requires the examination of ‘international’ jurisdiction, the court should test national procedural laws as to its ‘territorial’ jurisdiction in a way which is provided for under the lex fori, see recital 26;
2 Scope of the examination; Examination is required with regard to its international jurisdiction. In literature it is discussed whether the obligation of the court also is to investigate the factual elements forming the requirement of the debtor having its COMI or its establishment in the relevant jurisdiction ex officio. Some authors deny such an obligation, such as Mankowski, in: Mankowski/Müller/J.Schmidt (2016), Art. 4, nr. 8. My take is, that this is too narrow, see under 3 and 4;
3 Depth of examination; Recital 30 says that a court should assess ‘carefully’, whether the debtor’s COMI in ‘genuinely’ located in the Member State. This presupposes quite some detailed analysis;
4 Additional evidence; In practice, first, the court will take into account the facts presented in the request.  Where ‘… the circumstances of the matter give rise to doubts about the court’s jurisdiction, the court should require the debtor to submit additional evidence to support its assertions and, where the law applicable to the insolvency proceedings so allows, give the debtor’s creditors the opportunity to present their views on the question of jurisdiction’, thus recital 32. In the light of the utmost importance of determining carefully a debtor’s COMI, it is unfortunate that recital 32 has not been included in the actual text of the EIR 2015 itself.
Article 5(1) EIR 2015 indicates which parties may request a judicial review of the decision to open main insolvency proceedings. These are mainly the debtor itself or any creditor.

The Charlottenburg District Courts decides the following. I am keeping it short:
a  Article 5(1) is a European norm, to be autonomously interpreted. National requirements or limitations are not relevant. The same view is held in my Part II, para. 10622nff.   
b  Article 4(1) is limited to ex officio testing of the evidence (the court finds support in Mankowski’s view). The court also finds, on procedural ground, one should not set to heavy requirements to the activity of testing the facts leading to international jurisdiction. I submit, however, that it should also include further investigation, see also point 3 above, without denying that speed in deciding is certainly important.
c  In deciding that COMI was in Germany, the court in its earlier decision has not been overlooking decisive factors, such as:
(i)    From assessing the facts it follows that the debtor was incorporated in accordance with corporate law principles of control and operationally in the Air Berlin Group. Air Berlin as directing manager of NIKI has acted as such in a way ascertainably for third parties,
(ii)    Where a company has a duty to pay taxes or have certain accounting duties fulfilled can not be decisive,
(iii)    Plane tickets which included a certain flightnumber were booked outwardly recognizably via a contract with Air Berlin, and
(iv)    The fact that around 80 % of the cabin staff is Austrian can not be decisive.

The Charlottenburg court upheld its decision and announced that, in appeal, the case must be decided by the Landgericht Berlin. A decision may be awaited on short notice, see