"In the Union we trust" : trust-enhancing principles of Community law

In recent years there has been a growth in the use of English schemes of arrangement by companies registered in other EU Member States. High profile recent examples include TeleColumbas GmbH, Rodenstock GmbH, and Primacom Holdings GmbH. In each case these companies were able to access the English scheme jurisdiction without shifting their seat or COMI to the UK. This paper investigates this phenomenon, considering the use of an English scheme of arrangement and why it might be regarded as valuable to these companies. The paper then tackles two issues. First, it assesses how these companies are able to access the English scheme jurisdiction, and, in particular, it analyses the potential application of both the Insolvency Regulation and the Judgments Regulation in this regard. As part of this analysis the recognition and enforcement of English schemes of arrangement in other Member States is discussed. Second, it considers whether this use of English schemes gives rise to issues of forum shopping. This paper rejects the idea that forum shopping should be regarded as a concern in this context.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2322738_code607218.pdf?abstractid=2277451&type=2

Cross-Border Schemes of Arrangement and Forum Shopping

From the Introduction. The study of the European Court of Justice’s (ECJ) case law of the regarding the Area of Freedom Security and Justice (AFSJ) is fascinating in many ways.1 
First, almost the totality of the relevant case law is extremely recent, thereby marking
the first ‘foundational’ steps in this field of law. This is the result of the fact that the AFSJ was
set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999.2
Second, as the AFSJ is a new field of EU competence, it sets afresh all the fundamental questions – both political and legal – triggered by European integration, namely
in terms of: a) distribution of powers between the Union and its member states, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) measure of the protection given to fundamental rights. The above questions beg for answers which should take into account
both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.3
Third, and as a consequence of the above, the vast majority of the ECJ’s judgments relating to the AFSJ are a) delivered by the Full Court or, at least, the Grand Chamber, b) with
the intervention of great many member states and c) often obscure in content. This is due to the fact that the Court is called upon to set the foundational rules in a new field of EU law, often trying to accommodate divergent considerations, not all of which are strictly legal.4
Fourth, the case law of the Court relating to the AFSJ, touches upon a vast variety of topics which are not necessarily related to one another. This is why it is essential to limit the scope of this study. The content of, and steering for, the AFSJ were given by the Tampere
European Council, in October 1999. According to the Tampere Conclusions, the AFSJ should consist of four key elements: a) a common immigration and asylum policy, b) judicial
cooperation in both civil and penal matters, c) action against criminality and d) external action
of the EU in all the above fields. Moreover, the AFSJ is to a large extent based on the Schengen acquis. The latter has been ‘communautarised’5 by the Treaty of Amsterdam and
further ‘ventilated’ between the first and third pillars by decisions 1999/435 and 1999/436.6 Judicial cooperation in civil matters, mainly by means of international conventions (such as the Rome Convention of 1981 on the law applicable to contractual obligations) and regulations (such as (EC) 44/20017 and (EC) 1348/20008) also form part of the AFSJ.
However, the relevant case law of the ECJ will not be examined in the present contribution.9 Similarly, the judgments of the Court delivered in the course of Article 226 EC proceedings against member states, will be omitted.10 Even after setting aside the above case law and notwithstanding the fact that the AFSJ only dates as far back as May 1999, the judgments of the ECJ are numerous. A simple (if not simplistic) categorisation may be between, on the one hand, judgments which concern the institutional setting of the AFSJ (para. 2) and, on the other, judgments which are related to some substantive AFSJ policy (para. 3).

With or without you...judging politically in the field of Area of Freedom, Security and Justice? Research Papers in Law, 3/2007

Note e commenti - L'art. 6 della Convenzione europea dei diritti dell'uomo e l'ordine pubblico processuale nel sistema della Convenzione di Bruxelles

Case C-1/05, Yunying Jia v. Migrationsverket, with annotation by M. Elsmore and P. Starup

The essay analyses the principle of mutual recognition as a legal technique of coordination of the Member States’ legal systems. We examine its ability of ensuring effectiveness of the individual’s fundamental rights and of favouring the European integration. The study of the principle is both static and dynamic. From a static standpoint, the analysis attempts to delineate the anatomy of mutual recognition, identifying its legal nature, its distinctive features in each of the three areas of its implementation (internal market, judicial cooperation in civil and criminal matters) and the variable geometry that characterises its application. From a dynamic point of view, the research examines the principle of mutual recognition as a technique for coordinating the legal systems of the Member States, in both its horizontal and vertical dimension.L’opera esamina il principio del mutuo riconoscimento quale strumento di coordinamento degli ordinamenti degli Stati membri, interrogandosi sull’efficacia di tale tecnica giuridica nel garantire una tutela effettiva dei diritti fondamentali dell’individuo, risultando funzionale all’integrazione europea. Lo studio del principio e compiuto sotto un duplice profilo, statico e dinamico. Sotto il profilo statico, l’analisi tenta di delineare l’anatomia del mutuo riconoscimento, identificandone la natura giuridica, gli elementi distintivi in ciascuno dei tre settori in cui esso trova attuazione (mercato interno, cooperazione giudiziaria in materia civile e penale), nonche la peculiare geometria variabile che ne caratterizza l’applicazione. Sotto il profilo dinamico, la ricerca esamina il principio del mutuo riconoscimento come tecnica di coordinamento degli ordinamenti giuridici degli Stati membri, ora nella dimensione orizzontale ora nella dimensione verticale.

Eloisa Giorgi

Papers

Il principio del mutuo riconoscimento nell'ordinamento dell'Unione europea