The effects of the opening of an insolvency proceeding on civil/commercial disputes pursuant to EU Reg 848/2015

The above-mentioned Regulation specifies – among other things – which member state’s law shall apply on specific issues; in particular, according to art. 7, lett. f), EU Reg. 848/2015, the law of the Member State where the insolvency proceeding has been opened (i.e. the so-called lex concursus) governs – among other things – “[…] the effects of the insolvency proceedings on proceedings brought by individual creditors, with the exception of pending lawsuits”.

It is pretty clear that the mentioned provision encompasses two different hypotheses.

Precisely, with the expression “proceedings brought by individual creditors”, the EU Regulation means those proceedings that have the scope of seizing the debtor’s assets; while, with the expression “pending lawsuits”, the EU regulation refers to those proceedings that deal with the merit of the dispute. In other words, the aim of the provisions is to ensure that the liquidation of the debtor’s assets is governed by the lex concursus (which usually prevents individual enforcement actions against the debtor), in order to ensure the so-called par condicium creditorum.

The contrary solution is instead provided for the proceeding concerning the merit of a dispute: the “pending lawsuits” mentioned in the last part of art. 7, lett. f), are governed by art. 18 EU Reg 848/2015, which provides that the effects on the dispute of one party’s insolvency “[…] shall be governed solely by the law of the Member State in which that lawsuit is pending or in which the arbitral tribunal has its seat”.

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