Pojęcie toczącego się postępowania sądowego oraz prawo właściwe dla oceny skutków postępowania upadłościowego na toczące się postępowanie sądowe w rozumieniu art. 292 dyrektywy Wypłacalność ii Glosa do wyroku Trybunału sprawiedliwości z dnia 13 stycz
The concept of pending lawsuit and the law applicable to the assessment of the effects of insolvency proceedings on pending lawsuits within the meaning of Art. 292 of the solvency ii directive. Gloss to the judgment of the Court of Justice of 13 Jan

Summary/Abstract: Under national law the opening of insolvency proceedings usually results in the suspension of the proceedings pending against the debtor that had been initiated before insolvency was opened. If the insolvency proceedings were opened against the debtor in a country other than the country in which the court proceedings initiated against him concerning an asset issue, the fundamental question arises as to which national law should apply to the effects of the opening of foreign insolvency on these pro- ceedings, and to what extent. In other words, it is necessary to decide whether the law applicable to insolvency (lex concursus) or the law of the state of the pending lawsuit (lex fori processus) applies. EU law lays down uniform conflict-of-law rules to deal with a conflict that arises between the legal sys- tems involved. Nevertheless, there are doubts as to the precise demarcation between lex concursus and lex fori processus. The very notion of a pending lawsuit against the debtor may also be contentious. In the commented judgment, the Court of Justice interpreted the relevant provisions of secondary EU law in connection with the liquidation of an insurance undertaking falling within the scope of Directive 2009/138/EC. The Court first clarified the concept of pending lawsuits and then defined the scope of the lex fori processus as the law applicable to the effects of insolvency proceedings on pending court proceedings. In the commented judgment, the Tribunal continues and clarifies its existing jurisprudence on cross-border insolvencies, in particular in the case of Bulstrad Vienna Insurance Group. In the opinion of the author, both the decision and its justification deserve a positive assessment.

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