Presumptions concerning recognition

Reinhard Bork and Michael Veder

Chapter Article 16 in The UNCITRAL Model Laws on Cross-Border Insolvency and on the Recognition and Enforcement of Insolvency-Related Judgments, 2025, pp 151-171 from Edward Elgar Publishing

Abstract: Article 16 supplies several presumptions that can simplify and expedite recognition. The receiving court is permitted to presume the authenticity of documents and that the foreign representative and foreign proceeding requirements for recognition have been satisfied if so indicated in the foreign court’s order or certificate. The receiving court is required to presume that the debtor’s COMI is located at its registered office or habitual residence, but that presumption can be rebutted. The courts disagree about the meaning of COMI, the factors relevant to that determination, the relative weight given to various factors and the quantum of proof or evidence needed to rebut the presumption. The courts even disagree on whether the debtor’s COMI should be measured as of the date the foreign proceeding was commenced or the date recognition is sought.

Keywords: Authenticity; Burden of proof; COMI; Foreign main proceeding; Presumption; Rebuttal (search for similar items in EconPapers)
Date: 2025
ISBN: 9781839102516
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