Vis attractiva concursus and its limits

In its judgment of 9 November 2017, the Court of Justice has limited the principle of vis attractiva concursus, i.e. the principle that ancillary proceedings may be attracted to, and brought before, the forum concursus. The Court ruled that article 3(1) of the (old) Insolvency Regulation must be interpreted as meaning that an action for damages for unfair competition by which the assignee of part of the business acquired in the course of insolvency proceedings is accused of misrepresenting itself as being the exclusive distributor of articles manufactured by the debtor does not fall within the jurisdiction of the court which opened the insolvency proceedings.

The dispute in the main proceedings concerned the liability of an assignee of a part of a business acquired in the course of insolvency proceedings, for allegedly committing acts of unfair competition. The judgment serves as a reminder that not everything that happens in an insolvency proceeding necessarily concerns insolvency (law). It is worth noting that the new Insolvency Regulation explicitly deals with jurisdiction for actions deriving directly from insolvency proceedings and closely linked with them (article 6)

Author: Arie Van Hoe

Lawyer (NautaDutilh), voluntary scientific collaborator (University of Antwerp)

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