Jurisdiction in EU cross‐border insolvency law, 1st edition. By AntonioLeandro, Cheltenham: Edward Elgar. 2025. xxx + 294 pp. GBP 165. ISBN 978‐1‐03533‐402‐5

This book, titled ‘Jurisdiction in EU Cross-Border Insolvency Law’, has been written by Antonio Leandro, a Professor at the University of Bari Aldo Moro in Italy and a member 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’.1 Indeed, this book is mainly focusing 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 I-bis Regulation (Brussels I-bis). 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 has not, and then, what Leandro's views are. Where the Commission shall deliver ‘… no later than 27 June 2027 (and every 5 years thereafter)’ (Article 90(1) of the EIR 2015) a review of the present EIR 2015,2 the Commission will find the necessary ingredients in this book. Leandro's goal is to investigate the 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 (Directive Proposal 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 also 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 of the Preventive Restructuring Directive 2019/1023 (PRD) and Leandro (paragraph 1.102 et seq.) on the background of multi-pronged policies in cross-border insolvency.3 I just note that the EU's Capital Markets Union (CMU) initiative has been officially rebranded to the Savings and Sustainable Investment Union (SSIU). Its renaming does not seem merely cosmetic; rather, it is presented as a purposeful shift to make the initiative more relatable and citizen-oriented.4 ‘… 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’. … 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. 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 the place of the ‘head office’ decisive, 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 the ‘head office’ argument in the Virgós/Schmit Report (1996), nr. 75. In 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, that is, presented as an independent decisive factor for determining COMI. I defended the position that, in order to determine COMI, what is decisive is the ‘Contact with creditors’ approach.5 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 original text of the European Insolvency Regulation (EIR 2000) did not provide any rules on corporate groups. 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 2024 High Court judgement on the application of Project Lietzenburger Straße Holdco S.à.r.L (the ‘Plan Company’) for an order sanctioning a restructuring plan between the 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) of the EIR 2015.7 … 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 (paragraph 2.035). … 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.8 Leandro notes that, under new developments coming from the crypto-business, elements such as the place of the wallet, web facilities and the place of digital assets management will be part of this comprehensive assessment. Leandro (paragraph 2.039) submits that, with debtors operating virtually rather than physically, COMI case law may be of little assistance, referring to principles as applied by the English High Court.9 In our book, we supported this seven-step guidance from the English court.10 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 the PRD) 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 that if new procedures and actions that derive directly from and are closely linked with these proceedings are to meet the insolvency exception of Brussels I-bis, the international jurisdiction question would find no answer in EU law and can only be determined by national law such as: ‘Such a gap in EU private international law is not acceptable’ (Leandro, paragraph 3.067). … by attempting to balance the principle (that the EIR 2015 must not be interpreted too broadly (case law) and the Brussels I-bis 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 to the Rome I Regulation (Rome I). 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 I-bis 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.’ stating: ‘… Those proceedings should be covered by this Regulation’. The interpretation of EIR 2105 should as much as possible avoid regulatory loopholes between the EIR 2015 and Brussels I-bis. The CJEU has repeatedly ruled that the material scope of the EIR 2015 and Brussels I-bis should not coincide and that there should be no gap between the two instruments.11 Leandro (paragraph 3.004 et seq.) dives deep into this theme and proves to be an excellent guide here. Chapter 4 concerns ‘Jurisdiction on preservation and recovery measures’. Judgements regarding preservation measures are subject to Article 32(1), third paragraph, of the EIR 2015. As to ‘other’ judgements, recognition and enforcement of judgements other than those referred to in Article 32(1) shall be governed by the Brussels I-bis, provided that this Regulation is applicable (Article 32(2) of the EIR 2015). Recognition of preservation measures Article 52 of the 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) of the EIR 2015, will be recognised and enforced according to the rule laid down in Article 32(1), first subparagraph. 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 for 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 against the far-reaching interests underlying an insolvency proceeding depending on time, place and reasons for which the measures are demanded and issued. Within the wide scope of the EIR 2015 ‘provisional’ measures include a provisional stay of the realisation of the assets in a secondary proceeding which may be requested by the main insolvency practitioner (IP) (Article 46 of the EIR 2015), ‘Protective’ measures include measures to preserve and enhance the insolvency estate against recovery by a local creditor (Article 2(11) of the EIR 2015), also during a pending request for the opening of secondary proceedings. 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 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 (paragraph 4.008 et seq.), clarifies which courts have international jurisdiction to order 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—Leandro's love child—asset-tracing and recovery in cross-border situations. He also addresses ‘new’ assets (e.g., digital assets), the specific role of IPs, 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/her money. Chapter 5 entitled ‘Special Jurisdictional Regimes’ once again demonstrates the complexity of questions regarding international jurisdiction. Leandro addresses several exclusions from Article 7 of the EIR 2015 (and thereby splitting ‘forum’ from ‘ius’), namely for contracts relating to immovable property (Article 11 of the EIR 2015) and regarding employment (Article 13 of the EIR 2015), jurisdiction in connection with the cooperation provisions of Articles 41–44 of the 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) of the EIR 2015) assess whether indeed a protocol serves the orderly administration of justice. Its legal nature, in short, is procedural insolvency. This is not a strong view. If a legal theme is an ‘X’ and is mentioned in 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 procedural insolvency) also applies with regard to a protocol that would be concluded in relation to a national preventive restructuring framework (e.g., after implementation of the PRD). ‘The international recognition of the court-sanctioned restructuring agreement is governed by Rome I’, says Dammann.12 Leandro (paragraph 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) of Rome I. Where ‘winding-up’ would mean ‘winding up insolvency proceedings’, Rome I would not apply, he concludes. may appoint a single insolvency practitioner for several insolvency proceedings concerning the same debtor or for different members of a group of companies … Leandro (paragraph 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 an 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 organise joint hearings, approve protocols and exercise a shared jurisdiction in the joint appointment of an IP evidenced by the fact that they render a ‘joint decision’ (paragraph 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.13 Let us 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 to appoint B. Nijnens also the that Article 42(1) in a cooperation but does not so as to also a specific act of cooperation. However, if the Austrian court is to the French court's the obligation to cooperate is, according to Nijnens, a I would have to more about Leandro's of ‘shared the mean that the does not to this It is to this book Chapter on disputes on other Articles 4 and 5 of the EIR 2015, including the of an opening being other proceedings already Chapter 7 addresses and EU cross-border insolvency. Here, he also on whether out-of-court restructuring fall under Rome I. Leandro is in the (paragraph A a and an the book. It is that Leandro a of out and his These are not all but they that every question about jurisdiction its on its the specific case law, and applicable The book to It where insolvency and proceedings and into asset-tracing and recovery issues. the of jurisdiction under the EIR 2015 with and other in a book that new for and

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