Centre Of Main Interests Research Articles

Moving a company's COMI to achieve a restructuring: factors for consideration

This article sets out the main factors for establishing a company's centre of main interests ("COMI") and considers what should be done in order to successfully move the COMI to another jurisdiction, particularly within the European Union. Published in Amicus Curiae – Journal of the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies. The Journal is produced by SALS at the IALS (Institute of Advanced Legal Studies, School of Advanced Study, University of London).

The Ongoing Struggle of Multinational Groups of Companies under the EC Insolvency Regulation

In the application of the Insolvency Regulation, the centre of main interests (COMI) of a debtor determines which national court is competent in insolvency proceedings. The Regulation presumes that the COMI of a company is the place of its registered office. Such a presumption, however, could well be at odds in cases where a company is part of a multinational corporate group.

Abuse of Law in the Context of European Insolvency Law

Abuse of law is a concept that can be found in the private laws of many jurisdictions in the world. The European Court of Justice has recently resorted to the concept quite often when dealing with the reach of the fundamental freedoms guaranteed by the EC Treaty. This article applies the abuse of law concept to European insolvency law questions. Of central importance here are the rules determining jurisdiction to open main insolvency proceedings under the European Insolvency Regulation (EIR). Such jurisdiction is tied to a debtor's ‘Centre of Main Interests’ (COMI) which can be changed – abusively. The article starts by exploring the context of the debate on abuse of law with respect to European insolvency law. It is characterised by regulatory competition between the Member States. The general elements of the abuse of law concept are then presented. It is an interpretative concept that looks at the dominant purpose of a particular legal provision. The article explores this concept with respect to potential abuses of freedom of establishment on the one hand and the EIR on the other hand in an insolvency context. Its main thesis is that COMI shifts that evidently do not contribute to maximising the debtor's net assets are abusive. COMI shifts that evidently benefit the debtor at the expense of its creditors or some creditors at the expense of others fall into this category: they are driven by distributive rather than by efficiency concerns. The article concludes with a proposal to amend the EIR such that reliance on the abuse of law concept to prevent opportunistic COMI shifts would be less pressing.

A Primer in Longitudinal Data Analysis

Longitudinal data, comprising repeated measurements of the same individuals over time, arise frequently in cardiology and the biomedical sciences in general. For example, Frison and Pocock1 used repeated measurements of the liver enzyme creatine kinase in serum of cardiac patients to study changes in liver function over a 12-month study period. The main goal, indeed the raison d’etre , of a longitudinal study is characterization of changes in the response of interest over time. Ordinarily, changes in the response are also related to selected covariates. For example, Frison and Pocock1 compared changes in creatine kinase between patients randomized to active drug and placebo. The past 25 years have witnessed remarkable developments in statistical methods for the analysis of longitudinal data. Despite these important advances, researchers in the biomedical sciences have been somewhat slow to adopt these methods and often rely on statistical techniques that fail to adequately account for longitudinal study designs. The goal of the present report is to provide an overview of some recently developed methods for longitudinal analyses that are more appropriate, with a focus on 2 methods for continuous responses: the analysis of response profiles and linear mixed-effects models. The analysis of response profiles is better suited to settings with a relatively small number of repeated measurements, obtained on a common set of occasions, whereas linear mixed-effects models are suitable in more general settings. Before describing these methods, we review some of the defining features of longitudinal studies and highlight the main aspects of longitudinal data that complicate their analysis. ### Covariance Structure A common feature of repeated measurements on an individual is correlation; that is, knowledge of the value of the response on one occasion provides information about the likely value of the response on a future occasion. Another common feature of longitudinal data is heterogeneous …

Cross-Border Insolvency Law in Europe: Present Status and Future Prospects

In May 2007 the European countries celebrated the first lustrum of the EU Insolvency Regulation (1346/2000). This article describes where Europe stands with its model which is based on well known theories of private international law for dealing with cross-border insolvencies. The EU Insolvency Regulation provides for a national court to exercise international jurisdiction to open insolvency proceedings. The basis for international jurisdiction is the debtor\'s “centre of main interests” or COMI. The two most important cases decided by the European Court of Justice (17 January 2006 Staubitz Schreiber and 2 May 2006 Eurofood) are discussed. The article further analyses the regulation\'s legal concept and its procedural context and explains that \'financial institutions\' are not covered by the Insolvency Regulation, but by separate directives (2001/17; 2001/24). After having taken stock several suggestions are submitted for improvement of the system of cross-border insolvency in Europe. * Prof Bob Wessels. Independent legal counsel and advisor.PER/PELJ Vol. 1 2008: pp. 1-35

National Policy Objectives from an EU Perspective: UK Corporate Rescue and the European Insolvency Regulation

This note reviews the implementation of EC Council Regulation 1346/2000 on insolvency proceedings by UK courts. Two recent decisions in the United Kingdom — Hans Brochier Holdings Ltd v. Exner (HBH) and Re Collins & Aikman Europe SA (C&A) — provide an indication of how UK courts will interpret the Regulation while implementing the United Kingdom’s newly established corporate insolvency regime and, specifically, the Enterprise Act 2002 and its overriding objectives. In HBH, the Court’s decision to regard the German forum as the company’s centre of main interest and thus as the forum for the main insolvency proceedings was influenced by the Court’s perception that certain social security protections would only be provided to the company’s employees if the company’s insolvency was administered in Germany, thus providing the company employees — who formed part of the company’s creditors ‘as a whole’ — better protection in insolvency. In C&A, the practice of providing creditors with oral assurances that their respective national insolvency protections would be respected by the administrators was approved by the Court. This is consistent with the purpose of furthering the objective of ‘rescue’, as the secondary proceedings may only be opened with a view to winding up the company.

THE EUROFOOD CASE: ONE COMPANY, TWO MAIN INSOLVENCY PROCEEDINGS: WHICH ONE IS THE REAL ONE?

On 2 May 2006, the European Court of Justice (ECJ) rendered its decision concerning the EC Insolvency Regulation. In this case the underlying issue was a conflict between an Italian court and an Irish court. Both of them ruled that the centre of main interests was in their own Member State. The facts were as follows.

The Battle over Jurisdiction in European Insolvency Law – ECJ 2.5.2006, C-341/04 (Eurofood) –

The judgment of the European Court of Justice in Eurofood IFSC Ltd., C-341/04, explores several key provisions of the European Insolvency Regulation (Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings), notably Articles 3(1), 16(1) and 26. The Court interpreted Article 3(1) on the basis of Recital 13 and held that the presumption whereby the centre of main interests (COMI) of a company is situated in the Member State where its registered office is situated can be rebutted only if factors which are both objective and ascertainable by third parties enable it to be established that an actual situation exists which is different from that which locating at that registered office is deemed to reflect. By contrast, where a company carries on its business in the territory of the Member State where its registered office is situated, the mere fact that its economic choices are or can be controlled by a parent company in another Member State is not enough to rebut the presumption. In this context the Court reminded the national courts that it is inherent in the principle of mutual trust that the court of a Member State hearing an application for the opening of main insolvency proceedings checks that it has jurisdiction having regard to Article 3(1), i.e. examines whether the COMI is situated in that Member State. On Article 16(1) the Court held the main insolvency proceedings opened by a court of a Member State must be recognised by the courts of the other Member States, without the latter being able to review the jurisdiction of the court of the opening State. The Court gave an autonomous interpretation to the words “judgment opening insolvency proceedings” in Article 16(1) as meaning every decision handed down by a court of a Member State, based on the debtor's insolvency and seeking the opening of proceedings referred to in Annex A to the Regulation, where that decision involves the divestment of the debtor and the appointment of a liquidator referred to in Annex C to the Regulation, irrespective of whether that decision was regarded as “opening” the insolvency proceedings under the national law. Finally, the Court held that under Article 26 a Member State may refuse to recognise insolvency proceedings opened in another Member State where the decision to open the proceedings was taken in flagrant breach of the fundamental right to be heard, which a person concerned by such proceedings enjoys. The article gives a critical assessment of the decision, noting in particular the dangers of allowing Member States to open insolvency proceedings on the basis of ex parte applications for provisional measures.

European chemicals growth may slow this year

The pace of growth of the chemical industry in Western Europe this year could well be below that of 1987. We are not forecasting a recession, says Richard D. Freeman, chairman of the forecasting panel of the U.K.'s Chemical Industries Association; we are expecting a slowdown. However, Freeman, who is also chief economist at ICI, acknowledges that there are a number of uncertainties. His panel's main interest centers on the future prospects for the industry in the U.K. But because this cannot be gauged in isolation from what takes place in the world at large, the panel looked further afield to other West European countries and to the U.S., Freeman told the association's Business Outlook Conference in London recently. In judging the prospects for the European chemical industry this year, A great deal depends on events in the world economy, Freeman notes. He cites as examples the collapse of stock prices in several countries last ...

Ferroelectrics in the para phase in a homogeneous, intense vhf field

Investigation of the behavior of ferroelectrics in an intense variable electric field has revealed a number of significant features. The choice of models explaining the observed effects requires that the interaction between the electric field and the acoustic vibrations of the crystal lattice of the material be taken into account, demonstrates the role of static charged defects, and reveals features of charge-carrier kinetics. The main interest centers on investigations in the vhf range, which is distinguished by high information content. Here, primarily, the small wavelength of the acoustic vibrations (∿ l μm) at frequencies of the intense excitation comparable with the film thickness and the crystallite size must be noted, together with the small duration of the vibration period, comparable with the charge-carrier relaxation time. The next problem is the creation of a model combining both the nonlinear effects and the charge-carrier kinetics determining the redistribution of the static internal field and the charge transfer. The development of such a model will have a decisive influence in improving the characteristics of ferroelectric devices. The development of microscopic models explaining the noted features of the ferroelectric properties is also very urgent. One of the interesting trends in this field is the use of the interband theory of ferroelectricity.

A Unique Approach to the Offshore Gas Disposal Problem: Castellon SALS Production Facilities

This paper outlines the problems, and their solutions, associated with the production, storage and gas disposal facilities of Shell Espana’s successful Single Anchor Leg Storage (SALS) development of the Castellon Field, situated in some 380-ft waterdepth, offshore Eastern Spain. An underwater completed well produces some 10,000 bbl/day, with Gas/Oil ratio of 125 sdf/bbl, via a single-anchor leg mooring system to a weather-vaning tanker, where separation, gas disposal and storage facilities are provided and whence the oil is exported via a shuttle tanker. The separation and storage systems are briefly described but the main interest centers on gas-associated problems since disposal of gas by conventional methods of flaring, venting or dilution was unacceptable if production was to continue uninterruptedly during transfer of oil to the export shuttle tanker. The alternative of closed incinerators adjacent to the funnel was considered and consultation with Holec Gas Generators/Smit Ovens Nijmegen B.V., manufacturers of inert-gas generators, led to modification and extension of Holec’s basic concepts, resulting in their design of closed, water-cooled units acceptable to the vessel’s classification society for mounting on the aft superstructure. The facilities described represent the likely minimum requirements for the production of a small offshore field. The short period between project initiation and first production — some 11 mo — imposed the necessity for using straightforward and reliable equipment and the success achieved underlines the suitability of a tanker-based system, of which the incinerators are seen as an almost integral feature, for the economic development of small or marginal fields for which more conventional methods are not viable.

Spin and mass dependence of models forψphotoproduction

The spin and vector-meson--mass dependence of phenomenological and constituent models for ..gamma..N ..-->.. psiN is investigated. Our main interest centers on the influence of the large vector-meson mass on s-channel helicity conservation at asymptotic and SLAC energies. The helicity amplitudes for photoproduction are studied in the context of several phenomenological and constituent models. In particular, in a model in which the vector meson is treated as a nonrelativistic bound state of a quark-antiquark pair, with two-vector-gluon exchange to the target, helicity flip is very small, but nonzero. The ratio of helicity flip to nonflip is found to be sensitive to the gluon mass in this model. Two-scalar-gluon exchange is found to conserve helicity asymptotically, but to flip it near threshold. In general, phenomenological models can partially account for the suppression of psi photoproduction compared to photoproduction of the lighter vector mesons, whereas the constituent models cannot.

A CLINICAL STUDY OF BILIARY TRACT DISEASE

This paper is based on a statistical study 1 of all cases with a diagnosis of disease of the biliary tract that have been in the surgical service of the Johns Hopkins Hospital between 1889 and 1924. This consideration will not include the cases with malignancy of the biliary tract, and those with a clinical diagnosis of disease which was not confirmed by an operation. The cases are divided into three groups: (1) stones in the gallbladder or cystic duct, or both (460 cases); (2) stones in the common duct, regardless of the location of other stones (139 cases), and (3) acute or chronic cholecystitis without the presence of stones (136 cases). The main interest centers in the ultimate condition of the patients following operation; but the more important points as regards (1) etiology, (2) symptomatology, (3) physical findings, (4) laboratory tests, (5) operation and reoperation, (6) bacteriology and pathology,