Overview:
● The Menu Approach
● Articles 3 and 7 EUIR: The Centre of Main Interest ("COMI")
○ Wind Hellas
● Cross-Border Schemes of Arrangement
○ Rodenstock
○ APCOA
● The US Bankruptcy Code
○ Using the US Bankruptcy Code to restructure a non-US business
○ Global Ocean Carrier
Worldwide Motor ("WM") Group:

● WM Group's business:
○ Providing retail auto financing and leasing facilities through WM dealers.
○ WM Group has asbestos personal injury creditors.
○ And a pension deficit.
○ And also security over its factory premises that secure acquisition loans and working capital.
● Questions to ask:
○ Which are the subsidiaries that are struggling financially?
● WM Corporation = Holding company based in Detroit
○ Company law the US is state-specific.
○ We can be fairly certain that WM Corporation is incorporated in Delaware.
● WM North American Inc = Privately- or closely-held corporation.
● WM Asia Pacific Pte Ltd = Singapore-based.
○ Pte Ltd = Private Limited.
● WM Latin American SA ● WM Europe SA
● WM Sarl and WMAC Inc = Joint ventures with FIAT and Capital Management LLC.
○ Similar to partnerships.
○ UK = Mere contract.
○ France = Separate legal entity.
● Capital Management LLC:
○ LLC = Limited liability company.
○ LLCs are taxed like partnerships. They are not taxed at corporate level, but at the level of their shareholders.
Menu Choice:
● Universalism:
○ One state has jurisdiction over all the debtor's assets and affairs (this is the
"principle of unity"). This state is base on the closest connection.
○ That jurisdiction covers the debtor's assets on a worldwide bases (this is the
"principle of universality").
● Territorialism:
○ Concurrent and parallel proceedings in different countries (the "principle of plurality").
○ Each proceeding is confined to local assets (the "principle of territoriality").
● Menu choice:
○ Free selection of jurisdiction and applicable insolvency law.
● Recap:
○ Bankruptcy law as an implicit term in the lending agreement.
○ Determines the lender's payout.
○ Factored into lending decisions.
○ Interest rate depends upon the applicable bankruptcy law.
○ Equity would bear the cost of an inefficient bankruptcy law.
○ Equity thus drafts the most beneficial bankruptcy regime.
○ Standardisation through menu of bankruptcy options either nationally or internationally.
○ Selection ex ante or ex post.
Article 3 EUIR, Centre of Main Interest ("COMI"):
● EUIR is a conflicts of law instrument.
○ It tells us what the applicable insolvency law is + which court has jurisdiction for the opening of insolvency proceedings.
○ It does not set out any substantive law.
● Jurisdiction to open proceedings where COMI is situated.
● The place where debtor conducts administration of his interests on a regular basis and is therefore ascertainable by third parties (Article 3(1) EUIR 2015). ● There is a presumption that COMI = where the corporation has his registered office in the absence of proof to the contrary.
○ Unless the corporation has moved its registered office within 3 months prior to the opening of insolvency proceedings (Article 3(1) EUIR 2015).
● Applicable Law:
○ Law of main proceedings for all matters concerning the insolvency procedure including its commencement, conduct, closure,and the priority of creditors'
claims (Article 7).
○ Exceptions (Articles 8-18):
■ Inter alia security interests;
■ Other rights in rem;
■ Set-off rights;
■ Rights under employment contracts; and
■ Rights under retention of title provisions.
● COMI: Eurofood
○ The term "COMI" must be interpreted in a uniform way across the EU.
○ There is no such thing as a "group COMI"; COMI is to be assessed separately for each distinct legal entity.
○ Control of the subsidiary by the parent is not sufficient to rebut presumption that the subsidiary's COMI is in Ireland.
■ Here, the Italy-based parent attempted to argue the the subsidiary's
COMI is also Italy.
■ Although this presumption might work if the subsidiary is nothing but a letter-box company.
○ COMI must be identified by criteria that are both objective and ascertainable by third parties.
● COMI: Interedil
○ Where management and supervision of a company are in the same place as the State of registration and such management decisions are ascertainable by third parties as being in that place, the presumption of COMI as being in the place of registration is irrebuttable.
○ The presence of company assets and contracts in a Member State other than the state of registration cannot be regarded as sufficient factors for rebutting the presumption.
○ Unless it is possible to establish in a manner ascertainable to third parties that the company's actual centre of management and supervision is located in that other Member State based on a comprehensive assessment of all relevant facts.
○ Factors relevant in determining COMI:
■ Internal accounting functions and treasury management
■ Law governing main contracts;

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