다국적 기업집단의 도산에 관한 합리적 접근 방안

The Reasonable Approaches to the Multinational Corporate Groups in Insolvency – focused on the determination of COMI

In case of international trade, of companies operating world-wide and an increasingly globalized economy, it is inevitable and an everyday fact that many reorganizations or insolvencies of multinational corporate groups involve more than one jurisdiction. With numerous companies having interests spread throughout the globe, international insolvency legal system becomes increasingly important. Until now, ‘EC Regulation on Insolvency Proceedings(EU Insolvency Regulation)’ and ‘UNCITRAL Model Law on Cross-Border Insolvency(Model Law)’ are applied to deal with international insolvency cases. However, both EU Insolvency Regulation and Model Law offer no rule for groups of affiliated companies. In short, there is no general rule to open or to consolidate insolvency proceedings against any of corporate groups and thus we rely on court decisions. Through lack of one clear definition of international jurisdiction, almost all current decisions of the courts regarding cross-border insolvency cases focus on the determination of the concept ‘center of main interests(COMI)’. European courts and Court of Justice of the European Union have set out several tests(e.g. head office functions, Eurofood approach, Standford approach). Recently the European Commission proposed the Revision of the EU Insolvency Regulation on the basis of the Interedil case. In our case, the Act on Rehabilitation and Bankruptcy of Debtor(so-called the Consolidated Insolvency Act) does not regulate the concept ‘COMI’ to determine which country’s courts have jurisdiction. Therefore it is necessary to establish and adopt the unified definition of the concept ‘COMI’ to ensure legal certainty and foreseeability by third parties.