2 . 1 . C O N C U R R E N T R E G U L A T O R Y J U R I S D I C T I O N IN C R O S S - B O R D E R I N S O L V E N CY

Cross-border insolvency proceedings will typically involve concurrent regulatory

jurisdiction in respect of b o th deployment and distribution. A Member State opening

universal insolvency proceedings desires to deploy and distribute the debtor's entire

estate. The Member State opening proceedings will therefore necessarily need the assistance

and co-operation of sister Member States whenever it lacks control over all of

the debtor's estate, and assets (or proceeds thereof) are located within the territory

of a sister Member State. At the same time, that latter Member State will by and large

be equally able to show a sufficiently close connection and be entitled to take and enforce

its own measures under Community law.

In matters of deployment, the presence of assets may establish a sufficiently close link

with the territory of a Member State for the purposes of regulatory jurisdiction.1 ' Each

Member State whose assistance is required in the deployment of a cross-border estate

will therefore concurrently enjoy regulatory jurisdiction. In respect of measures

regarding the distribution of (the proceeds of) the cross-border estate concurrent regulatory

jurisdiction is equally likely to occur, although it does not necessarily involve

the same Member States as in deployment. In matters of distribution the presence oi

assets alone does not suffice for a Member State to enjoy regulatory jurisdiction.

Instead, a Member State must show a sufficiently close link with those creditors it finds

in need of protection, whether or not any assets are located within its territory. Thus,

a Member State may in principle enjoy jurisdiction in distribution even though no

assets are present within its sphere of influence and responsibility; or, conversely,

it may lack jurisdiction even if there are. However, as explained earlier, distribution

is no less likely to involve concurrent regulatory jurisdiction. The effective protection

of particular creditors through the adjustment of relative entitlements necessitates and

entitles Member States to exercise control over the relative ranking of all (other) claims

affected. As a rule, at least some of these latter claims will be within the regulatory jurisdiction

of another Member State.1 1

In respect of the claims ol the debtor, effective control will generally require the assistance of the

( N l e m b e r i s i a l e w l i e r e the third party debtor is 1. icaled. S e e alsc i . \ r t i c l e 2 i g i ()l"Kegulation 134(1/2(190

on insolvency proceedings.

See chapter 5, para. 1.1.

See chapter 5, para. 4.2.