2 . 2 . ' F I R S T C O M E , F I R S T S E R V E D ' O R S H A R ED R E G U L A T O R Y R E S P O N S I B I L I TY

Community law does not make a choice in cases of concurrent and conflicting (exercise

o l ) regulatory jurisdiction. At the end of the day, such a situation of conflict of

laws presupposes that the regulatory measures of more than one Member State may

lawfully be applied. In particular, Community law does not allocate jurisdiction to

the Member State 'best placed to regulate matters' nor does it make a choice for 'the

least restrictive measure'.'1

In the context of cross-border insolvencies specifically, Von Wilmowsky has nevertheless

argued that Community law offers an (alternative) escape from these conflicts.

In matters ot deployment,1 " Community law and the duty of co-operation would

ensure unity of insolvency law and proceedings by forcing a choice between the conflicting

jurisdictions at the 'procedural stage'.' As, according to Von Wilmowsky,

Article 10 EC imposes a general duty on the Member States to apply each other's regulatory

measures, a maxim of'first come, first served' would dc facto determine which

Member State's law can lawfully be applied: the f i r s t Member State to open insolvency

proceedings binds all other Member States as they are bound by Community law to

accord effect to that measure.1'

However, the duty to assist and co-operate under Article 10 EC cannot be understood

as requiring Member States unconditionally to accord effect to sister Member State

measures, particularly not in cases ot concurrent regulatory jurisdiction such as crossborder

insolvency.'" A Member State is required to provide the assistance requested,

unless il can show there to be 'imperative reasons' for not doing so. As Zwartvehl

illustrates this proviso extends beyond the narrow confines of the conflicts of law

concept ol public policy. Zwartveld suggests that the duty of mutual assistance and

co-operation in good faith is not such as to override the 'regulatory sovereignty' a

Member State enjoys within their own respective spheres of influence and responsibility.

" Consequently, to the extent that it would conflict with its own regulatory policy

lawfully pursued under Community law a Member State would be allowed to refuse

the assistance requested and to accord effect to the foreign insolvency' law and proceedings.

Provided it has regulatory jurisdiction, a Member State would be entitled

to take its own measures of deployment and/or distribution, which may include the

opening of domestic proceedings. Community law therefore allows for plurality of

forum and/or law.

Von Wilmowsky's suggestion of a 'first come, first served' solution appears in part

motivated by the assumption that unity of insolvency law is a sine qua non for the effective

deployment of a cross-border estate. ' However, neither plurality of law nor

plurality of forum means that efficient administration ot the debtor's estate is a priori

excluded." Modern cross-border insolvency regulation emphasises that also without

states unconditionally surrendering their 'regulatory sovereignty' to foreign insolvency

proceedings and law, effective regulation may be brought about through the use of

co-operative structures. It is submitted that the putting into place of such co-operative

structures is exactly what Community law requires Member States to do. Community

law may fail to resolve conflicts arising from (the exercise of) concurrent regulatory

jurisdiction by making a choice, but neither does it leave the Member States unaffected

in these instances. Member States remain bound by the duty of mutual assistance and

co-operation in good faith, which exists b o t h as a limitation on as well as an extension

of regulatory power. Cross-border insolvency regulation is a shared regulatory

responsibility for the Member States. 1 They must enter into sincere co-operation with

a view to mitigate burdens to interstate trade as well as with the aim to co-ordinate

and/or reconcile their conflicting regulatory choices.