Il ruolo della lex concursus nel regolamento comunitario sulle procedure di insolvenza

The book focuses on the definition of lex concursus' scope of application as well as the co-ordination between this law and the different laws applicable in accordance with the conflict of laws system set forth by the EC Regulation No. 1346. The analysis encompasses the problem of the co-ordination between the national laws and the uniform rules laid down by the Regulation. The study has been carried out by having regard to the main theoretical opinions developed in the literature and in the case-law on the reasons for applying the lex fori concursus in matter of insolvency (the view according to which the lex concursus has to be applied because of procedural aspects of the insolvency proceedings, the view which emphasizes the link of instrumentality between proceedings/law of the State of the opening/purposes of the proceedings, and the view which justifies the lex concursus applicability in the context of the Regulation assuming that this latter would be inspired to the private international law method known as jurisdictional approach). On these basis, the book faces with the problem of the lex concursus applicability within the three main private international law fields relevant in the Regulation: jurisdiction (by solving the procedural aspects arising in the State of the opening), law applicable on the effects of the opening and the proceedings (both in the Member State of the opening and in the EU territory as a whole in compliance with the principle of mutual recognition) and enforcement of judgments. After having analysed the relevant international and domestic case-law, the book clarifies that the role of the lex concursus and its co-ordination with rules (uniform or foreign) aim to balance the several interests at stake in the proceedings and, accordingly, to achieve the main purposes of the Regulation. The balancing moment occurs before the court of the proceedings, while the mutual recognition of judgments and proceedings (as well as the mutual trust between the judicial bodies of the Member States) allows it to spread effects in the EU territory. The complex system of co-ordination between lex concursus, foreign laws and uniform rules allows achieving such outcome: although the court (State) of the proceedings is the «unavoidable and mandatory place for the insolvency administration», it can't only rely on «its» lex concursus, but it has to consider the relevant different rules imposed directly or indirectly by the Regulation for protecting creditors and third parties.