Applicable law

Bob Wessels and Defne Taşman

Chapter 7 in The European Insolvency Regulation, 2026, pp 50-74 from Edward Elgar Publishing

Abstract: The EIR 2015 establishes lex fori concursus as the core rule governing insolvency proceedings and their effects within the EU. Once proceedings are opened, the law of the Member State of the opening court applies uniformly, ensuring legal certainty, efficiency, and reduced forum shopping. This law governs the conduct of proceedings, treatment of assets and claims, powers of the insolvency practitioner, and avoidance of detrimental acts. To balance unity with fairness, creditors’ expectations and market stability, the EIR provides specific exceptions. These exceptions protect, inter alia, rights in rem, set-off, reservation of title, employment contracts, immovable property contracts, registered assets, intellectual property rights and patents, good-faith purchasers, and pending lawsuits and arbitration, and provide for avoidance of detrimental acts. The CJEU has interpreted these rules broadly, reinforcing predictability while safeguarding legitimate expectations. Together, these harmonised conflict-of-laws rules replace divergent national systems and support effective cross-border insolvency administration within the EU.

Keywords: Lex Fori Concursus; Rights in Rem; Set-Off; Reservation of Title; Arbitration; Employment Contracts; Registered Assets; IP Rights; Detrimental Acts (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035396436
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