An Evolution of COMI in the European Insolvency Regulation: From Insolvenzimperialismuss to the Recast

Abstract

The Centre of Main Interests (COMI) is one of the most relevant concepts in the international insolvency scene. It is used as the main criterion to assign jurisdiction in cross border insolvency cases in the vast majority of the European countries, the United States and every state that has incorporated UNCITRAL's Model Law on Cross Border Insolvency (since the recent adoption by Kenya, 41 states across the globe). The concept, as such, was for the first time introduced in a normative text in Europe. This paper analyses the evolution of the concept in the context of the European legal framework. First, its origins are traced with a view to identifying the reasons for its creation and the main policies behind its adoption. Then a general description of the interpretation of COMI in the most important judicial cases is provided. And finally the current state of things, with the recent recast of the European Insolvency Regulation, is assessed. It will be here argued that, despite its faltering inception, the evolution of the COMI has turned it into an adequate criterion to determine jurisdiction in cross border insolvency cases, and that, looking forward, an interpretation that is respectful with the economic rationale of the concept may help ensure that only positive forum shopping takes place between EU countries.