In rem rights (guarantees) in cross border insolvency proceedings

Abstract

In the European Union, the securities’ regime in cross-border insolvency is nowadays determined in accordance with the rules established by the European Regulation 848/2015, which reflects the compromise made by the European legislator in its attempt to reconcile conflicting interests – saving the debtor, promoting the efficiency in the procedure, ensuring the effectiveness of guarantees, supporting the credit – in the context of significant divergences between the national legislations on guarantees and insolvency. In the first part, the study reviews the conditions established by the European legislator for the implementation of the special protective rule from art. 8, emphasizing the problems related to their interpretation and application. Subsequently, it addresses the question of the nature of this rule, aiming to reveal its implications for the concerned creditors, but also to evaluate it as to its merits.