practical impact will depend on how often they are utilised by insolvency practitioners and the courts, and whether or not a cooperation and coordination culture is adopted in the EU, especially as these mechanisms are not mandatory.

The last section proffers a number of proposals for making the Regulation more effective in order to enhance legal certainty and to assist in the reduction of abusive forum shopping. Such proposals include clarifying undefined terms, moving the clarifications to binding sections of the New Recast EIR 2015, and explicitly defining abusive forum shopping by making reference to its impact on the interests of creditors. The chapter concludes by noting that the New Recast EIR 2015 is a positive step towards enhancing legal certainty in crossborder insolvency for both individual companies and groups of companies and could help in reducing abusive forum shopping. However, there is still room for improvement and reform, especially as many of the new provisions in the New Recast EIR 2015 are not mandatory in nature.

2 Original Contribution

This Thesis provided an original approach to analysing the problem of the lack of legal certainty for creditors in cross-border insolvency cases of MCGs by first examining the problem from a company law perspective and then from a conflict of laws perspective. The Thesis subsequently critically examined the EIR 2000 in depth and demonstrated that the notion of the COMI on its own is not capable of providing a satisfactory solution to the problem of legal certainty, especially as the EU insolvency rules and the jurisprudence of the CJEU do not contribute substantially to adding more certainty to the notion of the COMI. The Thesis examined proposals for filling the gaps of the EIR 2000, before critically examining the New Recast EIR 2015, where it was found that the codification of many of the CJEU decisions relating to the notion of the COMI in the New Recast EIR 2015 and the

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introduction of a new chapter on groups of companies have filled many of the gaps of the EIR 2000. Nevertheless, there is still room for improvement in terms of enhancing legal certainty for creditors in such insolvency cases, and therefore the Thesis makes a number of recommendations for resolving some of the shortcomings of the New Recast EIR 2015.

3 Future Research

This Thesis is one of only a few studies focusing on the legal aspects of legal certainty in cross-border insolvency cases of MCGs. The Thesis highlighted the existence of many ambiguous terms and concepts which have the potential to be understood more through further research. This section identifies a number of potential areas for future research that are relevant generally to private international law and more specifically to cross-border insolvency.

Future research can attempt to understand legal certainty from the perspective of creditors in cross-border insolvency cases by recognising the existence of three different levels of legal certainty: low, average, and absolute. A low level of legal certainty is the situation where there is no mechanism available to assist the creditor in determining the jurisdiction, the applicable law, or the enforcement of any judgement relating to the cross-border insolvency proceeding. An average level of certainty refers to the situation where there is a mechanism available, such as the notion of the COMI, to assist the creditor in ascertaining the jurisdiction, applicable law, or the enforcement of the judgment, but this mechanism may not be capable of producing consistent outcomes due to certain ambiguities. An absolute level of certainty is found where there is a mechanism available to assist the creditor in determining the jurisdiction, applicable law, or the enforcement of the judgement, and this mechanism is guaranteed to produce consistent outcomes, as it relies on clear and easy to follow criteria, such as using the registered office approach. It would be helpful to analyse the problem of

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cross-border insolvency of MCGs through this understanding of the different levels of certainty, and then attempting to rank or quantify the level of certainty provided by the various mechanisms available for dealing with such insolvency cases.

Another way to understand legal certainty in cross-border insolvency cases is to look at the progress of the insolvency through different phases. The first stage of the cases is prior to the actual proceedings, the second stage is the actual litigation proceedings, and the third stage is the enforcement stage, which takes place after the court makes its judgement. It is important to acknowledge that legal certainty at each of these three stages has different requirements, and may invariably increase or decrease through these stages for any given insolvency case. A more comprehensive solution to the problem of the lack of legal certainty in cross-border insolvency cases of MCGs could be achieved by acknowledging the differences between these three stages and attempting to find mechanisms that address the unique needs of MCGs in each of these stages.

This Thesis looked at the problem of cross-border insolvency of MCGs primarily from a conflict of laws perspective, and does not examine the substantive insolvency laws of the Member States of the EU, as that would go beyond the scope of this work. However, the Thesis discussed the ability to find a solution to the cross-border insolvency problem of MCGs through harmonising substantive insolvency laws within the Member States of the EU. The Thesis found that this is probably impossible to be achieved in the foreseeable future because there are fundamental differences between these laws amongst the Member States. It needs to be admitted that this opinion is not definitive, and it would be worthwhile to study in depth the differences between these substantive insolvency rules and the extent to which they could be harmonised through EU initiatives. Such research could consider gradual

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approaches to harmonisation, such as attempting to approximate the laws between the Member States in phases as opposed to harmonisation through a single instrument.

4 Final Remarks

The New Recast EIR 2015 is not a perfect solution to all of the problems relating to the lack of legal certainty and abusive forum shopping in cross-border insolvency cases of MCGs in the EU. However, it is definitely a step in the right direction and a reflection of the European approach of implementing incremental and pragmatic policy solutions. The incremental aspect of the European insolvency rules is extremely important for the success of this legal instrument, as the substantive insolvency laws of EU Member States can be extremely divergent, and therefore it would not be wise or possible to introduce drastic changes that do not respect or acknowledge these legitimate differences. The European approach to insolvency has also been pragmatic by providing solutions to MCG insolvency cases that do not challenge the core principles of company law or conflict of laws, but instead respects them by focusing on voluntary cooperation and coordination. Even though there are ambiguities in some of the new concepts introduced by the New Recast EIR 2015, these concepts will become more definitive as upcoming cases will require the courts to interpret their meaning. This should work towards achieving the main objective of the Regulation, which is to ensure the proper functioning of the internal market, as this requires that crossborder insolvency proceedings operate efficiently and effectively.

It is hoped that this contribution will provide a greater understanding of the issues surrounding the cross-border insolvency of MCGs in the EU and the extent to which European insolvency rules contribute to enhancing legal certainty and reducing abusive forum shopping, for the benefit of creditors. It is hoped that this improved understanding will help the EU formulate more effective and efficient insolvency rules.

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