The Puzzle of the New European COMI Rules: Rethinking COMI in the Age of Multinational, Digital and Glocal Enterprises

摘要

EU Regulation 2015/848 (Recast) laid down new rules on the debtor's 'centre of main interests' (COMI) both to make it easier to determine international jurisdiction and to prevent a debtor from fraudulently relocating his/her/its COMI from one Member State to another. However, the terms of the litigation concerning the NIKI case and an in-depth analysis of the Recast demonstrate that this operation has been unsuccessful. This paper argues: first, that the new COMI rules contain logical and teleological flaws; secondly, that the prerequisite that the COMI 'shall be the place [ horizontal ellipsis ] which is ascertainable by third parties' is a duplicate of the prerequisite 'on a regular basis'; thirdly, that the 'ascertainability' prerequisite could even prove to be problematic when insolvency occurs within an enterprise that is multinational in nature; and/or conducts its relationships with suppliers and customers through digital networks; and/or deals with a business having glocal considerations. Consequently, this paper puts forward a proposal for a better regulation that would aim both at fixing the regulatory flaws and at addressing more efficiently insolvencies within multinational, digital and glocal enterprises.