One for all, and all for one? On cross-border CoCo in group insolvencies under the Recast EIR and the existence of an ‘overriding group interest’

Abstract

In this article, the author examines to what extent insolvency practitioners and courts involved in insolvency proceedings concerning groups of companies, when engaging in cross-border communication, cooperation and coordination under the EU Insolvency Regulation (recast), should take an overriding group interest into account, or whether they may focus solely on the interests involved in their own specific insolvency proceedings. Based on an analysis of the underlying principle of ‘efficiency’ and the boundaries imposed on the pursuit for efficiency by the legal separateness of the individual group companies, the author concludes that, under certain circumstances and within limitations, the EU Insolvency Regulation (recast) does require insolvency practitioners and courts to take the overarching insolvent group of companies’ interests into account.