The book, discussed here, is titled ‘Jurisdiction in EU Cross-Border Insolvency Law’. It has been written by Antonio Leandro, a professor at the University of Bari Aldo Moro in Italy and one of my colleagues of the European Commission’s Group of Experts on Restructuring and Insolvency Law.
First a quote: ‘“Jurisdiction” is one of those words which mean different things in different contexts’, see England and Wales Court of Appeal (Civil Division), in: Khan v Singh-Sall & Anor [2023] EWCA Civ 1119. Indeed, this book is mainly focussing on ‘international jurisdiction’. That phenomenon has its basic rules in European instruments. Leandro thoroughly dives into these, especially the EU Insolvency Regulation (EIR 2015) and the Brussels Ib Regulation. The book is certainly timely, where it covers quite in detail ‘all’ provisions of the EIR 2015 where international jurisdiction has been given a basis or where it hasn’t, and then, what Leandro’s views are. Where the Commission shall deliver ‘… no later than 27 June 2027 (and very 5 years thereafter)’ (Article 90(1) EIR 2015) a review of the present EIR 2015 (see https://bobwessels.nl/blog/2025-07-doc2-seven-suggestions-to-strengthen-the-eu-insolvency-regulation/) the Commission will find the necessary ingredients in this book.
Leodro’s goal is to investigate ratio, structure and functioning of the grounds to open and oversee insolvency proceedings, and its personal, territorial and material, substantive scope. What makes this book special is the fact that it examines the court’s international jurisdiction at every stage in an insolvency proceeding. The reader will find too the inclusion of more recent (harmonisation) trends, the ‘certain aspects’ proposal (Proposal Directive 2022) regarding harmonisation, especially his view on asset-tracing and the recovery of assets and the interplay between cross-border insolvency proceedings (intra-EU and extra-EU). His focus is too on ADR. By harmonising these targeted aspects of insolvency law, the European Commission aims to create a more predictable and efficient environment for insolvency proceedings within the Member States of the EU. This harmonisation is expected to reduce information gathering and learning costs for cross-border investors, expand funding options for companies, and ultimately contribute to the completion of the Capital Markets Union (CMU). See recital 8 PRD 2019/1023 and Leandro (at par. 1.102 et seq.) on the background of multi-pronged policies in cross-border insolvency. See for my scepticism about CMU https://bobwessels.nl/blog/2021-11-doc3-capital-markets-union-cmu-insolvency-the-odd-couple/. I just note that EU’s Capital Markets Union (CMU) initiative has been officially rebranded in Savings and Sustainable Investment Union (SSIU). Its renaming does not seem merely cosmetic, rather is presented as a purposeful shift to make the initiative more relatable and citizen-oriented. See https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vl2ud98w3qxv?utm_source.
Collective proceedings
Leondro (par. 1.031) makes a division in the ‘public collective proceedings’ falling under the scope of the EIR 2015. Recital 14 EIR 2015 explains that these collective proceedings ‘… should include all or a significant part of the creditors’ to whom a debtor owes ‘… all or a substantial proportion’ of the debtor’s outstanding debts ‘… provided that the claims of those creditors who are not involved in such proceedings remain unaffected.’ The content (financial or otherwise) and nature of these creditors (e.g. trade creditors, intra group creditors or public creditors) seem irrelevant. The recital provides that these collective proceedings ‘… should also include proceedings which involve only the financial creditors of the debtor.’ Leandro submits that for the EIR 2015 a difference should be drawn between ‘all- creditors-inclusive’ and ‘not-all-creditors-inclusive’ proceedings. In his view the former mandatorily includes proceedings leading to a definite cessation of the debtor’s activities or liquidation, while the latter is limited to proceedings aimed at rescuing the debtor. The latter indication, however, does not express that all or some shareholders would be covered too and that these creditors at least represent ‘a substantial proportion’ of the debtor’s outstanding debts.
COMI
Reading Chapter 2 (‘Jurisdiction to open and supervise the insolvency proceedings’) brings back the fiery debate of some 2 decades ago about what is decisive in determining where COMI is located. Is decisive the place of the ‘head office’, or is it the perspective of third parties? A group of authors was very much in favour of the head office approach. I have criticised that view. This head office approach was defended with a reference to ‘head office’ argument in the Virgós/Schmit Report (1996), nr. 75. I my view that had been taken out of context. These reporters had been giving an explanation for the logic of the choice for the presumption of COMI, but had – by ‘head office’ defenders – been ‘promoted’ to the basis of a new theory, ie presented as an independent decisive factor for determining the COMI. I defended that to determine COMI, decisive is the ‘Contact with creditors’ approach. Further explained in: Bob Wessels and Stephan Madaus, International Insolvency Law Part II. European Insolvency Law (Wessels Insolvency Law Volume X), Deventer: Wolters Kluwer, 5th ed., 2022/10597 et seq.
Moreover, the theory (also referred to as ‘head office functions’, ‘parental control doctrine’, ‘mind of management approach’), emphasises typical group structure issues. The idea that the head office functions theory follows from the (interpretation of) the text, the history and the system of the Regulation has been inaccurate, as the EIR 2000 did not provide any rules on corporate groups.
Furthermore, the ‘head office’ theory takes into account several factors which are irrelevant to the build up of a positive answer to the requirement of ‘ascertainability by third parties’ (Article 3(1), second line EIR 2015). For instance, the argument that the debtor is ‘controlled’ by the parent company is not (or hardly) ascertainable for creditors. Other factors, regarded as relevant by certain courts (such as (i) that board meeting were held by a parent registered in Member State A, while the debtors business is in Member State B), or (ii) that the debtor for its acquisition of over a certain amount of euros should have internal permission form its parent company, or (iii) that senior employees only were to recruit in consultation with the parent, or (iv) that all IT support and corporate identity and branding was run by the parent; or (v) that the business of the debtor flowed from the company wide strategy, set by the parent, and so on) are not or hardly ascertainable by third parties. See for the right appoach for instance High Court 20 August 2021, BUJ Architects LLP v Investin Quay House Ltd [2021] EWHC 2371 (Ch), in which case the court says: ‘I bear in mind that the COMI of a company is determined objectively and must be ascertainable by third parties, particularly its creditors. As such, there is limited weight that can be placed on the fact that the Company’s board meetings are in Jersey… As I have said, the location of the meetings of the board were not ascertainable by third parties in any event but it is significant that there is nothing to suggest that any of the other directors engaged in the commercial direction or day-to-day management of the Company. The meetings appear to have been formalities … I am satisfied that the COMI of the Company has at all times been in England and Wales. If follows that the court has jurisdiction to make a winding-up order.’
Unfamiliarity with COMI (in practice and case law) persisted for several years, but European case law provided a workable clarification. This is reflected in the rules on international jurisdiction in the EIR 2015. In England the ‘contact with creditors’ approach is followed in the High Court of 2024 judgment on the application of Project Lietzenburger Straße Holdco S.à.r.L (the ‘Plan Company’) for an order sanctioning a restructuring plan between this Plan Company and three classes of its creditors under Part 26A of the Companies Act 2006 In England, the Insolvency (Amendment) (EU Exit) Regulations 2019 ensured the continued significance of the definition of COMI as found in Article 3(1) EIR 2015. See Project Lietzenburger Strabe Holdco SARL, Re [2024] EWHC 468 (Ch) (04 March 2024), mentioned by the author.
External perspective
Leandro agrees with the ‘contact with creditors’ approach and submits that in the mid 2025s the ‘external’ perspective of the debtor’s activity and administration ‘… is increasingly anchored in digital services and virtual communication tools that lessen the weight of physical offices in the search of the COMI’s location’ (par. 2.035).
In the aim to prevent fraudulent or abusive forum shopping (recital 29), recital 30 provides that the presumption that the registered office ‘… should be rebuttable, and the relevant court of a Member State should carefully assess whether the centre of the debtor’s main interests is genuinely located in that Member State. In the case of a company, it should be possible to rebut this presumption where the company’s central administration is located in a Member State other than that of its registered office, and where a comprehensive assessment of all the relevant factors establishes, in a manner that is ascertainable by third parties, that the company’s actual centre of management and supervision and of the management of its interests is located in that other Member State.’ The recital expresses the ‘codification’ of European case law. See CJEU 20 October 2011, C-396/09, ECLI:EU:C:2011:671 (Interedil Srl v Fallimento Intredil Srl, Intesa Gestione Crediti Spa).
Leandro notes that under new developments coming from the crypto-business, elements such as the place of the wallet, of web facilities and the place of digital assets management will be part of this comprehensive assessment. Leandro (2.039) submits that with debtors operating virtually rather than physically COMI case law may be of little assistance, referring the principles as applied by High Court of Justice 28 May 2021 [2021] EWHC 1523 (Ch) Melars Group Ltd v East-West Logistics LLP (Rev 2). In our book (Wessels-Madaus, International Insolvency Law Part II. European Insolvency Law (Wessels Insolvency Law Volume X), Deventer: Wolters Kluwer, 5th ed., 2022/10570f1) we supported this seven steps guidance from the English court.
Vis attractiva concursus
The next chapter in the book concerns ‘Jurisdiction under vis attractiva and consolidation’. Vis attractiva concursus literally means the attractive force of the insolvency proceedings. In legal terms, it refers to the principle that once insolvency proceedings are opened in one jurisdiction (based on COMI), the court of that main insolvency proceeding has exclusive jurisdiction to decide on actions that (in short) directly derive and are closely linked to these proceedings. This prevents parallel litigation in different states and ensures concentration of all insolvency-related disputes before the insolvency court.
Here, Leandro feels like a fish in water on this subject.
One of the questions discussed relates to preventive restructuring frameworks. There are national frameworks (in the national implementation of PRD 2019/1023) that fall under the scope of the EIR 2015, because they have been listed on Annex A of the EIR 2015 and there are frameworks that have not been listed. Accordingly, Leandro submits, if new procedures and actions that derive directly from and are closely linked with these proceedings are to meet the insolvency exception of Brussels Ibis, the international jurisdiction question would find no answer in EU law and only can be determined by national law such: ‘Such a gap in EU private international law is not acceptable.’ (Leandro, par. 3.067).
I wonder whether this view is correct. For a non-Annex A listed framework, the question is, of course, its legal nature. Is it a ‘proceeding’? Is it a ‘contact? Or are we in the area of ‘bankruptcy’? A non-Annex A listed framework is not automatically a subject under the scope of the bankruptcy exception of Brussels Ibis. If, in a cross-border setting, there is a disagreement with regard to the composition of a class and one of the creditors has a complaint or another creditor has a conflict with the debtor because he feels that certain information has not been given to him. Which court has international jurisdiction? Do such actions fall through the bankruptcy exception? Leandro submits that the future recast of the EIR 2015 and Brussels Ibis may phase out such drawbacks ‘… by attempting to balance the principle (that the EIR 2015 must not be interpreted to broadly (case law) and the Brussels Ibis exception has to be interpreted restrictively) ‘… against the background of the new generation of in-court and out-of-court proceedings’. Here Leandro stops. I think that the EU legislator and insolvency practice would like more concrete indications from the academic world. For non-Annex A processes, the contractual basis of a restructuring plan comes to mind, so a path for identification of international jurisdiction would point at Rome I.
No loopholes
In the recitals to the EIR 2015 the following focus has been chosen. Recital 7: ‘Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings and actions related to such proceedings are excluded from the scope of Regulation (EU) No 1215/2012 of the European Parliament and of the Council’. The latter Regulation is the Brussels Ibis regulation, in its recast version. There should be no gap between these proceedings and the proceeding covered by the EIR 2015. Recital 7 to the EIR 2015 continues, referring to these ‘Bankruptcy … compositions and analogous proceedings etc.’ proceedings: ‘… Those proceedings should be covered by this Regulation [EIR 2015; Wess]. The interpretation of EIR 2105 should as much as possible avoid regulatory loopholes between the EIR 2015 and the Brussels Ibis Regulation. The CJEU has repeatedly ruled that the material scope of the EIR 2015 and the Brussels Ibis Regulation should not coincide and that there should be no gap between the two instruments, see (among others) Comité d’entreprise de Nortel Networks SA and Others v. Cosme Rogeau and Cosme Rogeau v. Alan Robert Bloom and Others, Case No. 649/13, 11 June 2015, ECLI:EU:C:2015:384. Leandro (3.004 et seq.) dives deep into this theme and proves to be an excellent guide here.
Provisional, protective and preservation measures.
Chapter 4 concerns ‘Jurisdiction on preservation and recovery measures’. Judgments regarding preservation measures are subject to Article 32(1), third paragraph EIR 2015. As to ‘other’ judgments, recognition and enforcement of judgments other than those referred to in Article 32(1) shall be governed by the Brussels Ibis, provided that this Regulation is applicable (Article 32(2) EIR 2015). Recognition of preservation measures ex Article 52 EIR 2015 (pre-opening preservation measures) takes place pursuant to Article 32(1), first subparagraph. Therefore, preservation measures, issued by the court which has jurisdiction according to Article 3(1) EIR 2015, will be recognized and enforced according to the rule laid down in Article 32(1), first subparagraph. Recital 36 of the EIR 2015 stresses the importance of preservation measures: ‘Preservation measures both prior to and after the commencement of the insolvency proceedings are important to guarantee the effectiveness of the insolvency proceedings. In that connection, this Regulation should provide for various possibilities. On the one hand, the court competent for the main insolvency proceedings should be able to order provisional and protective measures covering assets situated in the territory of other Member States. On the other hand, an insolvency practitioner temporarily appointed prior to the opening of the main insolvency proceedings should be able, in the Member States in which an establishment belonging to the debtor is to be found, to apply for the preservation measures which are possible under the law of those Member States.’
Article 32 covers preservation measures adopted both before and after the opening of insolvency proceedings. Article 32(1), third subparagraph, ensures that from the moment of the request of the opening of insolvency proceedings, all preservation measures necessary to protect the future effectiveness of the proceedings fall under the system of the Regulation. Leandro looks, in the light of recital 36, at ‘provisional’, ‘protective’ and ‘preservation’ measures. He submits that the cited recital suggests that the characterisation of the measure should be weighed up against the far-reaching interests underlying an insolvency proceeding depending on time, place, and reasons for which the measures are demanded and issued. In the wide-scope of the EIR 2015 ‘provisional’ measures is included a provisional stay of the realisation of the assets in a secondary proceeding which may be requested by the main IP (Article 46 EIR 2015), ‘protective’ measures include measures to preserve and enhance the insolvency estate against recovery by a local creditor (Article 2(11) EIR 2015), also during a pending request for opening of secondary proceeding; however if secondary proceedings have been opened, the secondary IP may demand to set aside any act in the interests of creditors, including the claim (as foreseen in recital 46) that assets have been abusively been removed by the main IP. Finally, ‘preservation’ measures include discovery orders concerning the asset location, including measures to obtain information from third parties that could help to trace assets. Leandro (4.008 et seq.), clarifies which courts have international jurisdiction to orders these measures, with an eye on ensuring asset recovery to the benefit of the estate in the context of the ‘various possibilities’ recital 36 indicates.
This is a valuable section in the book on a topic that receives little attention in the general literature, focusing on – Leoandro’s love child – asset tracing and recovery in cross-border situations. He also addresses ‘new’ assets (e.g., digital assets), the specific role of IP, but also the impact of public policy on ‘fair’ preservation measures, anti-suit injunctions, and beyond the EIR 2015: the European Account Preservation Order (EAPO) and Regulation 2020/1783 on taking evidence, and beyond the territorial scope of the EU. The interested reader gets value for his money.
Special Jurisdictional Regimes
Chapter 5 entitled ‘Special Jurisdictional Regimes’ once again demonstrates the complexity of questions regarding international jurisdiction. Leondro addresses several exclusions from Article 7 EIR 2015 (and thereby splitting ‘forum’ from ‘ius’), namely for contracts relating to immovable property (Article 11 EIR 2015) and regarding employment (Article 13 EIR 2015), jurisdiction in connection with the cooperation provisions of Articles 41-44 EIR 2015, and jurisdiction regarding cooperation and coordination in group proceedings. The topic of ‘Protocols’ is also addressed. As to the legal nature of a protocol he submits that a protocol is a procedural tool directly grounded and established by the EIR 2015, it contributes to the efficiency of the insolvency proceedings and the courts should, before approving or disapproving a protocol (Article 42(3)(e) EIR 2015) access whether indeed a protocol serves the orderly administration of justice. There legal nature, in short, is insolvency procedural.
This is not a strong view. If a legal theme is an “X” and is mentioned is a few recitals and articles (often together with its equivalent ‘agreement’), in an EU instrument, named “Y”, it does not become “Y”. I wonder whether Leandro’s view (a protocol in insolvency procedural) also applies with regard to a protocol that would be concluded in relation to a national preventive restructuring framework (after implementation of PRD 2019/1023). A view could be that where Rome I Regulation applies in situations involving a conflict of laws to a contract (ie. to ‘contractual obligations in civil and commercial matters’ pursuant to Art. 1(1) Rome I), it is without doubt that such a restructuring framework (or certain parts of the restructuring plan, regarded as ‘contract’, ie contractual obligations in civil and commercial matters) could be regarded as substantive aspects of a restructuring plan themselves to fall within the scope of the Rome I Regulation. ‘The international recognition of the court-sanctioned restructuring agreement is governed by Rome I’, says Dammann, in: Paulus/Dammann (eds.), European Preventive Restructuring (2021), Art. 1, nr. 83, referring to German and French sources from Madaus respectively Rotaru. Leandro (7.070), however, is cautious about the question of whether out-of-court restructuring workouts fall within the scope of Rome I. He points out the unclear meaning of the ‘winding-up of companies’ element in the exclusion of Article 1(2)(f) Rome I. Where ‘winding-up’ would mean ‘winding up insolvency proceedings’, Rome I would not apply, he concludes.
Cooperation between courts, a ‘shared jurisdiction’?
Another theme Leandro discusses is ‘jurisdiction and cooperation’. Courts ‘shall cooperate’ with courts in another member state, where a request for opening insolvency proceedings is pending or which has opened such proceedings. See Article 43 EIR 2015. What is the subject of cooperation? Recital 50 provides that these courts may cooperate by ‘coordinating the appointment of insolvency practitioners’; they ‘may appoint a single insolvency practitioner for several insolvency proceedings concerning the same debtor or for different members of a group of companies,…’
Leandro (par. 5.044) submits that this duty works irrespective of equivalent duties being established in the lex concursus. Will there be ‘equivalent’ duties (to cross-border cooperate) in a court’s national laws? I doubt it. On a EU level, because of the Article 43-duties of cooperation, he continues to submit that courts have a ‘shared jurisdiction’ in the limited scope of cross-border cooperation. A shared jurisdiction to organising joint hearings, approve protocols and exercising a shared jurisdiction in the joint appointment of an IP evidenced by the fact that they render a ‘joint decision’ (par. 5.048). In which state to appeal such a ‘joint decision’?
It is a pity that Leandro in this chapter does not elaborate on a PhD (defended in 2022 in Germany) on the whole theme. See W.J.E. Nijnens, Cooperation and Communication Obligations in European Insolvency Law, PhD 2022, Deventer: Wolters Kluwer 2023. Let’s pick one of Nijnens’ examples. In Austria, Italy and France the opening of secondary procedures has been requested. In Italy and France, these secondary proceedings have already been opened, and the Italian court and the French court have appointed A as IP. The Austrian court has not yet opened secondary proceedings and is considering appointing B. The French court requests the Austrian court to also appoint A as IP. If the Austrian court deems that Austrian law does not preclude this, and considers A equally suitable as B, the Austrian court is not, according to Nijnens, at liberty to reject the French court’s request: Article 42(1) obliges the Austrian court to appoint A. Regardless of whether it is probable that the Austrian court will consider A and B equally suitable (especially if A is less versed in Austrian insolvency law or in Austrian/German language than B), one can doubt whether the Austrian court should appoint A. Nijnens argues that the obligation to cooperate in Article 42(1), would become empty if the Austrian court were free to appoint B. Nijnens also sees the counterargument that Article 42(1) requires participation in a cooperation process, but does not go so far as to also require a specific act of cooperation. However, if the Austrian court is free to ignore the French court’s request, the obligation to cooperate is, according to Nijnens, a paper tiger. I would have whished to learn more about Leandro’s concept of ‘shared jurisdiction’, unless the inverted commas mean that the author himself does not know how to correctly identify this unknown figure.
Other themes
It’s time to conclude this book review. Chapter 6, on settling disputes on jurisdiction, addresses, among other things, Articles 4 and 5 of the EIR 2015, including the consequences of an initial opening being revoked vis-à-vis other proceedings already pending. Chapter 7 addresses arbitration, ADR, and EU cross-border insolvency. Here, he also briefly elaborates on whether out-of-court restructuring exercises fall under Rome I. Leondro is inclined in the affirmative (par. 7.070).
A Conclusion, a bibliography and an index close the book.
In sum
It is clear that Leandro raises a range of problems, maps them out well, and often adds his own perspectives. These are not all convincing, but they highlight that every question about jurisdiction always finds its solution based on its historical development, the specific context, past case law, and applicable literature. The book adds to theoretical depth practical insight. It touches upon scenarios where insolvency and civil/commercial proceedings overlap and delves into asset tracing and recovery issues. Also, the interaction of jurisdiction under the EIR 2015 with arbitration and other alternative dispute resolution processes results in a book that offers new perspectives for practitioners (including litigators), academics, and policymakers
Antonio Leandro, Jurisdiction in EU Cross-Border Insolvency Law, Edward Elgar Publishing, Cheltenham, UK / Northampton, MA, USA, 2025. ISBN 978 1 0353 3402 5.
Note: this book I received free of charge from the publisher with the request to announce it or to review it on my blog at www.bobwessels.nl.