European Convention on Certain International Aspects of Bankruptcy

Transcription

1 Europen Trety Series - No. 136 Europen Convention on Certin Interntionl Aspects of Bnkruptcy Istnul, 5.VI.1990 Premle The memer Sttes of the Council of Europe, signtories hereto, Considering tht the im of the Council of Europe is to chieve greter unity etween its memers; Considering tht nkruptcy proceedings nd similr proceedings more nd more frequently concern persons who exercise ctivities outside the ntionl territory; Considering tht it is necessry to gurntee minimum of legl co-opertion y deling with certin interntionl spects of nkruptcy such s the power of dministrtors nd liquidtors in nkruptcy to ct outside the ntionl territory, the possiility of resorting to the opening of secondry nkruptcies in the territory of other Prties nd the possiility for creditors to lodge their clims in the nkruptcies opened rod, Hve greed s follows: Chpter I Generl provisions Article 1 Scope of the Convention 1 This Convention shll pply to collective insolvency proceedings which entil disinvestment of the detor nd the ppointment of liquidtor nd which my entil the liquidtion of the ssets. Such proceedings, herefter referred to s "nkruptcy", re listed in Appendix A which is n integrl prt of this Convention. Appendix A shll contin proceedings of the memer Sttes of the Council of Europe s well s of ny Stte cceding to the Convention under the terms of Article 35. This Convention shll not pply to proceedings relting to insurnce compnies or credit institutions. 2 When nkruptcy is opened in Prty, this Convention shll govern: the exercise in other Prties of certin powers of the liquidtor concerning the dministrtion of the detor's ssets; the opening of secondry nkruptcies in other Prties;

2 c the informtion to e given to creditors residing in other Prties nd the lodgement of their clims. 3 For the purposes of this Convention: "liquidtor" mens ny person or ody whose function is to dminister or liquidte the ssets of the nkrupt or to supervise the ctivities of the detor. These persons nd odies re listed in Appendix B, which is n integrl prt of this Convention; "disinvestment of the detor" mens the plcing of power to mnge, control nd dispose of the ssets in the hnds of liquidtor. Article 2 Proof of the ppointment of the liquidtor The ppointment of the liquidtor shll e evidenced y certified copy of the originl decision ppointing him or y n officil certificte of ppointment issued y the court or ny other competent uthority which hs opened the nkruptcy. A trnsltion in the officil lnguge or one of the officil lnguges of the Prty where the liquidtor exercises his powers my e required. No leglistion or other similr formlity shll e required. Article 3 Opening of nkruptcy The decision to open the nkruptcy must: emnte from court or other uthority hving competence under Article 4; c e effective in the territory of the Prty where the nkruptcy is opened; nd not e mnifestly contrry to the pulic policy of the Prty in which the liquidtor intends to exercise his powers under the terms of Chpter II or in which the opening of secondry nkruptcy is requested under the terms of Chpter III. Article 4 Indirect interntionl competence 1 The courts or other uthorities of the Prty in which the detor hs the centre of his min interests shll e considered s eing competent for opening the nkruptcy. For compnies nd legl persons, unless the contrry is proved, the plce of the registered office shll e presumed to e the centre of their min interests. 2 The courts or other uthorities of the Prty in whose territory the detor hs n estlishment shll lso e considered s eing competent: if the centre of the detor's min interests is not locted in the territory of ny Prty; or if the nkruptcy cnnot e opened y court or other uthority of the Prty competent under prgrph 1 ecuse of the provisions of its ntionl lw nd of the cpcity of the detor. In this event, tht Prty shll not e oliged to pply this Convention. However, when the nkruptcy of detor is opened under prgrph or y courts or other uthorities in vrious Prties in which he hs n estlishment, the court or uthority which first gve judgment shll lone e considered competent. 2

3 Article 5 Prtil pyment of the creditors Without prejudice to clims gurnteed y securities or rights over lnd or other property, creditor who hs received prt pyment in respect of his clim in nkruptcy opened in one Prty my not prticipte in dividend for the sme clim in nkruptcy opened with regrd to the sme detor in nother Prty, so long s the dividend received y the other creditors in the nkruptcy opened in tht other Prty is less thn the dividend he hs lredy received. Chpter II Exercise of certin powers of the liquidtor Article 6 Scope of Chpter II In ddition to the proceedings provided for in Article 1, prgrph 1, this chpter shll lso pply to proceedings ordered y court or n uthority upon request for the opening of collective procedure under Article 1, prgrph 1, nd which im t the provisionl protection of the ssets of the detor. Article 7 Cpcity of the liquidtor The liquidtor my exercise his powers under the conditions set out in this chpter on presenttion of the document mentioned in Article 2 nd under the conditions mentioned in Article 3. Article 8 Mesures of protection nd preservtion of the ssets From the dte of his ppointment, the liquidtor my tke or cuse to e tken, in ccordnce with the lw of the Prty in which he intends to ct, ny necessry steps to protect or preserve the vlue of the ssets of the detor, including the seeking of ssistnce from competent uthorities in tht Prty without, however, removing those ssets from the territory of the Prty where they re situted. Article 9 Advertisement of the liquidtor's powers A summry of the decision ppointing the liquidtor s provided y Article 2 must, fter ny necessry uthoristion given y the competent uthority of the Prty where the liquidtor intends to ct, e dvertised pursunt to the method of puliction determined y tht Prty. Article 10 Acts of dministrtion, mngement nd disposl of the detor's ssets 1 Within the powers conferred on him under the lw of the Prty in which the nkruptcy is opened nd under the conditions set out in the following rticles of this chpter, the liquidtor my tke or cuse to e tken ny cts to dminister, mnge or dispose of the detor's ssets including removing them from the territory of the Prty where they re situted. 2 The implementtion of these mesures shll e suject to the lw of the Prty in whose territory the ssets re situted. Article 11 Conditions of exercise of the liquidtor's powers 1 The liquidtor's powers s set out in Article 10, prgrph 1, shll e suspended during twomonth period commencing the dy fter the puliction of the notice referred to in Article 9. If, during this period or t ny lter stge, ny request for nkruptcy or for proceedings to prevent nkruptcy hs een mde ginst the detor in the Prty where the ssets re locted, the powers of the liquidtor shll e suspended until ny such requests re rejected. 3

4 The liquidtor shll e empowered to lodge n ppliction for nkruptcy if the conditions for opening nkruptcy under the ntionl lw of the Prty where he intends to ct re met. 2 During the period mentioned in prgrph 1, only creditors who, in the Prty where the liquidtor intends to exercise his powers, enjoy right to preferentil pyment or would hve enjoyed such right if the nkruptcy hd een opened in tht Prty, creditors who hve pulic lw clim or creditors who hve clim rising from the opertion of n estlishment of the detor or from employment in tht Prty, my commence or pursue individul legl ction ginst the ssets of the detor. 3 On the expirtion of the period mentioned in prgrph 1, the creditors my no longer commence individul legl ction nd only the liquidtor shll hve the power to tke or cuse to e tken the cts mentioned in Article 10, prgrph 1. Article 12 Ojections to the liquidtor's powers 1 Where n ojection is mde to the exercise of his powers, it shll e for the liquidtor to request the court of the Prty in whose territory the ct is to e performed to declre tht he is entitled to exercise those powers under the Convention. 2 If the extent of his powers is contested, it is for the liquidtor to estlish the sme. Article 13 Effects of dischrge of pyment nd delivery of ssets 1 Pyment or delivery of ssets to the liquidtor mde in good fith shll constitute vlid dischrge. They shll e presumed to e mde in good fith if mde fter the dvertisement mentioned in Article 9 or fter presenttion of the certificte mentioned in Article 2. 2 Without prejudice to Article 11, prgrph 2, pyment or delivery of ssets to the detor shll not constitute vlid dischrge if they hve een mde fter the dvertisement provided under Article 9, unless the person who mde them estlishes tht he did not hve knowledge of this dvertisement. Article 14 Limittions to the exercise of the liquidtor's powers 1 The opening or recognition of nkruptcy proceedings or of proceedings which prevent nkruptcy in the Prty in which the liquidtor intends to exercise his powers provided for in this chpter shll prevent the exercise of his powers in tht Prty. 2 The liquidtor cnnot perform in nother Prty n ct which is: contrry to ny security held y ny person other thn the detor over lnd or other property estlished or recognised y the lw of tht Prty; or mnifestly contrry to the pulic policy of tht Prty. Article 15 Extension of the liquidtor's powers Any Prty my permit the foreign liquidtor to exercise on its territory wider powers thn those lid down in this chpter. 4

5 Chpter III Secondry nkruptcies Article 16 Secondry nkruptcy Any detor declred nkrupt y court or ny other competent uthority under Article 4, prgrph 1 (min nkruptcy), my, y virtue of this fct lone, e declred nkrupt in ny other Prty (secondry nkruptcy), whether or not he is insolvent in tht Prty, provided tht the decision declring him nkrupt ws mde in ccordnce with Article 3, prgrphs nd c, nd tht no nkruptcy or proceedings to prevent nkruptcy hve lredy een opened in tht Prty. Article 17 Interntionl competence Without prejudice to the other grounds of competence provided for y ntionl lw, the courts or uthorities of ny Prty in which n estlishment of the detor is situted shll e competent to open secondry nkruptcy. The courts or uthorities of ny Prty in which ssets of the detor re situted shll e eqully competent. Article 18 Opening of the secondry nkruptcy Upon production of the decision opening the min nkruptcy, the following shll e entitled to request the opening of the secondry nkruptcy: the liquidtor in the min nkruptcy; or ny other person or ody grnted the right to request the opening of nkruptcy y the lw of the Prty where the opening of the secondry nkruptcy is requested. Article 19 Applicle lw Except s otherwise provided in this Convention, the secondry nkruptcy shll e governed y the nkruptcy lw of the Prty where tht nkruptcy is opened. Article 20 Lodgement of clims 1 Any clim my e lodged in secondry nkruptcy. 2 All clims lodged in the secondry nkruptcy shll, y mens of copies, e notified to the liquidtor or the competent uthority of the min nkruptcy. Clims so notified shll e regrded s vlidly lodged in the min nkruptcy. Article 21 Pyment of clims Clims enjoying right to preferentil pyment or security over lnd or other property, pulic lw clims nd clims rising from the opertion of n estlishment of the detor or from employment in the Prty where the secondry nkruptcy is opened shll e verified nd, when dmitted, shll e pid from the proceeds of the liquidtion of the ssets of the secondry nkruptcy. Article 22 Trnsfer of the remining ssets Following the pyment of clims in conformity with Article 21, the remining ssets shll form prt of the ssets in the min nkruptcy. Any dministrtive ct necessry to this effect shll e performed forthwith y the liquidtor of the secondry nkruptcy. 5

6 Article 23 Clims rising fter the opening of the min nkruptcy 1 Without prejudice to remedies provided to creditors y the lw of the min nkruptcy, clims rising efore the opening of the secondry nkruptcy cnnot e rejected in the min nkruptcy on the sole ground tht they rose fter the opening of the ltter nkruptcy. 2 Without prejudice to the provisions of Article 21, the clims mentioned in prgrph 1 my prticipte in dividend only on ssets remining in the secondry nkruptcy trnsferred under the conditions lid out in Article 22. Article 24 Equlity of creditors Creditors in the min nkruptcy who re entitled to receive dividend from ssets coming from the secondry nkruptcy shll e treted eqully, regrdless of ny privileges or other exceptions to the principle of equlity etween creditors provided y the lw of the min nkruptcy. Article 25 Duty to communicte informtion The liquidtors in the min nd secondry nkruptcies shll promptly communicte to ech other ny informtion which might e relevnt to the other proceedings, in prticulr ll mesures imed t terminting the procedure. Article 26 End of the secondry nkruptcy Proceedings in secondry nkruptcy cnnot e terminted efore n opinion hs een otined from the liquidtor of the min nkruptcy, provided tht such opinion is furnished within resonle period of time. Article 27 Composition in the secondry nkruptcy A composition in the secondry nkruptcy, where such is provided for in the lw pplicle to tht nkruptcy, cnnot tke plce without the prior consent of the liquidtor of the min nkruptcy. Such consent cnnot e withheld if it is proved tht the finncil interests of the creditors of the min nkruptcy re not ffected y tht composition. Article 28 Plurlity of nkruptcies 1 Any nkruptcy opened fter the opening of nkruptcy y court or other uthority which is competent in ccordnce with Article 4, prgrph 1, shll e secondry nkruptcy. 2 The liquidtor of nkruptcy opened y court or other uthority which is competent in ccordnce with Article 4, prgrph 1, my request tht the ssets remining from nkruptcy opened previously in nother Prty e trnsferred to him fter the end of tht nkruptcy. He my lso request to e notified of ny informtion provided for in Article 25. Chpter IV Informtion of the creditors nd lodgement of their clims Article 29 Scope of Chpter IV In ddition to the proceedings provided for in Article 1, prgrph 1, this chpter shll lso pply to proceedings which do not entil the disinvestment of the detor or which cnnot entil the liquidtion of ssets, s well s to secondry nkruptcy proceedings. 6

7 Article 30 Duty to inform the creditors 1 As soon s proceedings mentioned in Appendix A or secondry nkruptcy proceedings re opened in Prty, the competent uthority of tht Prty or the liquidtor ppointed in it shll inform, promptly nd individully, the known creditors residing in the other Prties. 2 This informtion shll e given y notice contining the pproprite detils, in prticulr s to time-limits nd mesures to e tken. Such notice shll lso indicte whether creditors whose clims re preferentil or secured need lodge their clims. Article 31 Lodgement of clims Any creditor residing in Prty other thn tht in which the proceedings hve een opened my lodge his clim in writing to the competent uthority or liquidtor mentioned in Article 30. The creditor shll send copies of supporting documents, if ny, nd shll indicte the nture of the clim, the dte on which it rose, its mount, s well s whether or not it is preferentil nd, if pplicle, the ssets ffected y the preference. Article 32 Lnguges 1 Suject to the provisions of Article 39, the notice mentioned in Article 30 my e drwn up in the officil lnguge of the uthority which hs opened the procedure. If this lnguge is neither one of the officil lnguges of the Council of Europe nor tht of the creditor nor tht of the Prty where he resides, trnsltion into one of these lnguges shll e ttched to the notice. 2 Suject to the provisions of Article 39, the written clim mentioned in Article 31 my e drwn up in the lnguge of the creditor. If this lnguge is not tht of the uthority which hs opened the procedure, trnsltion in tht lnguge or one of the officil lnguges of the Council of Europe shll e ttched to it. Chpter V Finl provisions Article 33 Signture, rtifiction, cceptnce or pprovl This Convention shll e open for signture y the memer Sttes of the Council of Europe. It is suject to rtifiction, cceptnce or pprovl. Instruments of rtifiction, cceptnce or pprovl shll e deposited with the Secretry Generl of the Council of Europe. Article 34 Entry into force 1 This Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte on which three memer Sttes of the Council of Europe hve expressed their consent to e ound y the Convention in ccordnce with the provisions of Article In respect of ny memer Stte which susequently expresses its consent to e ound y it, the Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte of the deposit of the instrument of rtifiction, cceptnce or pprovl. 7

8 Article 35 Accession 1 After the entry into force of this Convention, the Committee of Ministers of the Council of Europe my invite ny Stte not memer of the Council to ccede to this Convention, y decision tken y the mjority provided for in Article 20.d of the Sttute of the Council of Europe nd y the unnimous vote of the representtives of the Contrcting Sttes entitled to sit on the Committee. 2 When non-memer Stte of the Council requests to e invited to ccede to this Convention, it shll sumit to the Secretry Generl of the Council of Europe the list of proceedings to e included in Appendix A nd the persons or odies to e included in Appendix B. 3 In respect of ny cceding Stte, the Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte of deposit of the instrument of ccession with the Secretry Generl. Article 36 Appendices 1 Any Contrcting Stte my when depositing its instrument of rtifiction, cceptnce, pprovl or ccession or t ny time therefter, ddress to the Secretry Generl of the Council of Europe declrtion contining ny chnge it wishes to mke to Appendix A or Appendix B. 2 The Secretry Generl shll communicte such declrtion to the signtory Sttes, the Contrcting Sttes nd the other Prties. The chnge shll e considered to e dopted if no ojection is mde y ny Stte, thus notified, efore the expiry of period of three months from the dte of notifiction. The chnge shll enter into force on the first dy of the following month. Article 37 Territoril ppliction 1 Any Stte my, t the time of signture or deposit of its instrument of rtifiction, cceptnce, pprovl or ccession, specify the territory or territories to which this Convention shll pply. 2 Any Stte my t ny lter dte, y declrtion ddressed to the Secretry Generl of the Council of Europe, extend the ppliction of this Convention to ny other territory specified in the declrtion. In respect of such territory, the Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte of receipt of this declrtion y the Secretry Generl. 3 Any declrtion mde under the two preceding prgrphs my, in respect of ny territory specified in this declrtion, e withdrwn y notifiction ddressed to the Secretry Generl. The withdrwl shll ecome effective on the first dy of the month following the expirtion of period of three months fter the dte of receipt of this notifiction y the Secretry Generl. Article 38 Interntionl conventions nd rrngements 1 This Convention shll not prejudice the ppliction of interntionl conventions to which Prty is, or ecomes, Prty. 2 In their mutul reltions, Prties which re memers of the Europen Economic Community shll pply Community rules nd shll therefore not pply the rules rising from this Convention, except in so fr s there is no Community rule governing the prticulr suject concerned. 8

9 Article 39 Declrtions on the use of lnguges 1 Any Stte my, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, declre tht the notice nd written clim mentioned, respectively, in Articles 30 nd 31 shll, y wy of exception to the provisions of Article 32, e drwn up exclusively in its officil lnguge or one of its officil lnguges. 2 Any Stte my, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, declre tht the written lodgement of clims mentioned in Article 31 my e drwn up in ny lnguge other thn those mentioned in Article 32, prgrph 2. Article 40 Reservtions 1 Any Stte my, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, declre tht it will not pply either Chpter II or Chpter III of the Convention. 2 A Prty which hs declred tht it will not pply Chpter III shll nevertheless e ound, except where it hs mde n express declrtion to the contrry, to pply Articles 20, prgrph 2, 23 nd 24. Where Prty hs mde declrtion of non-ppliction of these rticles, the Prty on whose territory secondry nkruptcy is opened shll not e ound to pply Article 21 in its reltions with the Prty which mde the sid declrtion. 3 No other reservtion my e mde in respect of the provisions of this Convention. Article 41 Declrtion on the informtion mentioned in Article 9 Any Stte shll, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, designte the uthority nd the method of puliction mentioned in Article 9 y declrtion ddressed to the Secretry Generl of the Council of Europe. Article 42 Implementtion of the Convention 1 Following the entry into force of this Convention, group of experts representing the Prties nd the non-contrcting memer Sttes of the Council of Europe shll meet t the request of t lest two Prties or on the inititive of the Secretry Generl of the Council of Europe. 2 The terms of reference of this group will e to ssess the implementtion of the Convention nd to mke ny relevnt suggestions. Article 43 Denuncition 1 Any Prty my t ny time denounce this Convention y mens of notifiction ddressed to the Secretry Generl of the Council of Europe. 2 Such denuncition shll ecome effective on the first dy of the month following the expirtion of period of three months fter the dte of receipt of the notifiction y the Secretry Generl. Article 44 Notifictions The Secretry Generl of the Council of Europe shll notify the memer Sttes of the Council nd ny Stte which hs cceded or hs een invited to ccede to this Convention of: 9

10 ny signture; the deposit of ny instrument of rtifiction, cceptnce, pprovl or ccession; c ny dte of entry into force of this Convention in ccordnce with Articles 34, 35 nd 36; d ny other ct, notifiction or communiction relting to this Convention. In witness whereof the undersigned, eing duly uthorised thereto, hve signed this Convention. Done t Istnul, this 5th dy of June 1990, in English nd French, oth texts eing eqully uthentic, in single copy which shll e deposited in the rchives of the Council of Europe. The Secretry Generl of the Council of Europe shll trnsmit certified copies to ech memer Stte of the Council of Europe nd to ny Stte invited to ccede to this Convention. 10