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Draft Convention on Bankruptcy, Winding-Up, Arrangements, Com Bulletin of the European Communities Supplement 2/82 Draft Convention on bankruptcy, winding-up, arrangements, com­ positions and similar proceedings Report on the draft Convention on bankruptcy, winding-up, arrange­ ments, compositions and similar pro­ ceedings EUROPEAN COMMUNITIES Commission The draft Convention on bankruptcy, winding-up, arrangements, compositions and similar proceedings was drawn up in pursuance of Article 220 of the Treaty establish­ ing the European Economic Community, under which the Member States were to 'enter into negotiations with each other with a view to securing for the benefit of their nationals ... the simplification of formalities governing the reciprocal recogni­ tion and enforcement of judgments of courts or tribunals ... '. The need for negotiations on these matters had been clear to the Member States from the Community's inception. The negotiations culminated in the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which was signed in Brussels on 27 September 1968 and has since been amended by the Convention on the accession of the new Member States to the Convention, signed in Luxembourg on 9 October 1978.1 However, bankruptcies, compositions and other analogous proceedings were excluded from the scope of the Judgments Convention. As early as 1960 it had been decided, because of the special problems involved, to negotiate a special convention concerning such proceedings, and a paral­ lel working party had been set up under Commission auspices, composed of govern­ ment and Commission experts together with observers from the Benelux Commis­ sion for the study of the unification of law and the Hague Conference on Private International Law. The 1970 draft had to be completely renegotiated after Denmark, Ireland and the United Kingdom joined the Community. The present draft was sent to the President of the Council and, for their opinion, to the representatives of the Member States and the President of the Commission2 by the Chairman of the Working Party, Mr Lemontey, in June 1980. The report written byMrLemonteyis also published in this issue. Negotiations between the Member States will continue in the Council during 1982. 1 OJ L 304, 30. 10. 1978. 2 The Commission's opinion is published in OJ L 391, 31. 12. 1981. S. 2/82 contents Draft Convention 9 Preamble Title I - Scope of the Convention and general provisions (Articles 1 and 2) 11 Title II - Jurisdiction 12 Section I -General provisions (Articles 3 to 9) 12 Section II- Special provisions (Articles 10 to 12) 13 Section III- Rules to prevent conflicts of jurisdiction (Articles 13 and 14) 13 Section IV- Actions arising from the bankruptcy (Articles 15 and 16) 14 Title III- Applicable law (Articles 17 to 19) 14 Title IV - General effects of the bankruptcy 15 Section I -Effects of the bankruptcy independently of advertisement (Articles 20 to 25) 15 Section II - Effects of the bankruptcy dependent upon advertisement (Articles 26 to 28) 16 Section III - Powers and functions of authorities administering the bankruptcy (Articles 29 to 33) 17 Section IV- Effects of the bankruptcy on the estate of the debtor (Articles 34 and 35) 18 Section V - Effects of the bankruptcy on past acts and on current contracts (Articles 36 to 42) 18 Section VI - Preferential claims, secured claims, claims by creditors in respect of debts incurred by the general body of creditors (Articles 43 to 52) 20 Section VII - Effects of the bankruptcy on the personal capacity of the debtor (Article 53) 22 Section VIII - Special provisions applying to certain proceedings other than bank­ ruptcy (Article 54) 22 Title V- Recognition and enforcement (Article 55) 22 Section I - Recognition of judgments concerning the opening and course of the proceedings (Articles 56 to 59) 23 Section II - Enforcement of judgments concerning the opening and course of the proceedings (Article 60) 23 Section III- Proceedings to challenge the bankruptcy (Articles 61 to 66) 23 Section IV- Recognition and enforcement of other judgments (Article 67) 25 Section V - General provisions (Articles 68 and 69) 25 Title VI- Interpretation by the Court of Justice (Articles 70 to 74) 25 Title VII- Transitional provisions (Article 75) 26 Title VIII- Relationship to other conventions (Articles 76 to 78) 26 Title IX- Final provisions (Articles 79 to 87) 27 s. 2/82 5 Annexes 29 Protocol 30 Joint declaration 43 Report 45 Chapter I - Preliminary remarks 47 Chapter II - Reasons for the Convention 47 Differences in international bankruptcy law in the Member States 47 Economic advantages of a Community convention 49 The shortcomings of existing conventions 50 General scheme of the Convention 50 Chapter III- The scope of the Convention (Title I of the Convention) 53 Bankruptcy, composition and analogous proceedings 53 Undertakings concerned; problem posed by insurance undertakings 55 Mandatory nature of the Convention 55 Irrelevance of the nationality of the parties 56 Single, universal and exclusive character of proceedings opened 56 Chapter IV- The jurisdiction of the courts 56 General considerations 56 Jurisdiction- direct and general 57 The criterion of the debtor's centre of administration 57 Examination of the sections of Title II of the Convention 59 Section I - General provisions 59 Section II - Special provisions 62 Section III - Conflicts of jurisdiction 64 Section IV - Actions arising from the bankruptcy 67 Chapter V- The applicable law and the effects of the bankruptcy 70 General remarks and examination of Title III of the Convention 70 Examination of the sections of Title IV of the Convention 71 Section I - Effects of the bankruptcy independently of advertisement 71 Section II - Advertisement and its effects 73 Section III- Powers and functions of authorities administering the bankruptcy 76 Section IV - Effects of the bankruptcy on the estate of the debtor 80 Section V- Effects of the bankruptcy on past acts and on current contracts 82 Section VI - Preferential claims and secured claims 90 Section VII- Effects of the bankruptcy on the debtor's person 99 Section VIII - Special provisions for certain proceedings other than bankruptcy 100 Chapter VI - Recognition and enforcement (Title V of the Convention) 101 Section I- Recognition of bankruptcy judgments 101 Section II - Enforcement of bankruptcy judgments 103 6 s. 2/82 Section III- Proceedings to challenge the bankruptcy 103 Section IV - Recognition and enforcement of other bankruptcy judgments 105 Section V - General provisions 106 Chapter VII - Interpretation by the Court of Justice (Title VI of the Convention) 106 Chapter VIII- Transitional provisions (Title VII of the Convention) 106 Chapter IX- Relationship to other international conventions (Title VIII of the Convention) 107 Chapter X - Final provisions (Title IX of the Convention) 108 Chapter XI- Protocol 109 Annex I- Examples of the operative parts of German judgments 113 Annex II - Committee of experts who framed the text of the Convention 114 S. 2/82 Draft Convention 9-10 Preamble Title I The High Contracting Parties to the Treaty estab­ Scope of the Convention and lishing the European Economic Community, general provisions Desiring to implement the provisions of Article 220 of that Treaty by virtue of which they undertook to Article 1 secure the simplification of formalities governing Scope of the Convention the reciprocal recognition and enforcement of judgments of courts or tribunals; 1. This Convention shall apply, irrespective of the nationality of the persons concerned, to the Anxious to strengthen in the Community the legal proceedings (hereinafter called 'bankruptcy'), protection of persons therein established; specified in Article I(a) of the Protocol to this Considering that it is necessary for this purpose to Convention, and to the arrangements, compositions determine the jurisdiction of their courts or au­ and other proceedings listed in Article I(b) of the thorities with regard to bankruptcy, winding-up, ar­ Protocol. rangements, compositions and similar proceedings and to facilitate the recognition and enforcement of 2. In so far as is not otherwise provided, the provi­ judgments given in such matters; sions of this Convention relating to bankruptcy shall apply by analogy to the arrangements, compositions Have decided to conclude this Convention and to and other proceedings listed in Article I (b) of the this end have designated as their plenipotentiaries: Protocol. HIS MAJESTY THE KING OF THE BEL­ GIANS: 3. Nevertheless, this Convention shall apply to the bankruptcy, and to arrangements, compositions and the other proceedings listed in Article I (b) of the HER MAJESTY THE QUEEN OF DENMARK: Protocol, as well as to the [special compulsory] 1 winding-up procedure, of insurance undertakings THE PRESIDENT OF THE FEDERAL but only when the Directive dealing with the coor­ REPUBLIC OF GERMANY: dination of national laws in this respect has been brought into force and in so far as this Directive does not otherwise provide. THE PRESIDENT OF THE FRENCH REPUBLIC: It shall, however, apply to bankruptcies, arrange­ ments, compositions and other proceedings listed in Article I(b) of the Protocol which are opened in re­ THE PRESIDENT OF IRELAND: spect of undertakings which are engaged only in reinsurance , with the exception however of mutual THE PRESIDENT OF THE ITALIAN reinsurance companies which have entered into ag­ REPUBLIC: reements with mutual insurance companies involv­ ing the complete reinsurance of the insurance con­ tracts of those mutual insurance
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