The Swiss - Austrian cross-border insolvency proceedings
Promovendus: Mw. J. Kremmel
Promotor: Prof.Dr. P. Oberhammer
Duur: 1/7/2012 - 31/12/2013
My PhD Research topic deals with the Swiss and Austrian insolvency proceedings. Cross-border insolvencies become more and more important. Due to a fact, that Switzerland is not a member of the EU the EuInsVO is not applicable. This fact leads to several problems with the result, that cross-border insolvency proceedings have to be part of a specific recognition procedure, while in the European Union as well as in Austria there is an automatic recognition taking place. The Swiss and the Austrian rules regarding the court competence to open an insolvency proceeding differ from each other. The Swiss law only accepts the foreign court competence to open the procedure in the country of the registered office (domicile). According to the EuInsVO as well as to Austrian law the insolvency proceeding has to be opened in the state where the COMI is situated. How this situation is to be solved is not easy to answer. Furthermore a foreign administrator has no right to become active in Switzerland. He only has the power to ask for the foreign insolvency decree to be recognized. As a consequence whenever there is a third party involved (e.g. based on a paulian action) no foreign administrator might take action against the third party due to no right of action before the insolvency decree has not been recognized in a separate procedure. Again this leads to difficulties in practice. The main aim of the PhD research will therefore be to examine the cross-border insolvency proceedings between these two countries in detail and to find possible solutions.