Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

One of the issues addressed is bankruptcy tourism. It is fair to say that at the meeting we had of Ministers for justice, a general view was expressed by most of those present that there is a need for greater uniformity in the interpretation of the concept of centre of main interest. I do not wish to refer to an individual case. We did discover in the context of some bankruptcy proceedings, that when some people went from this State to the United Kingdom that the issue of whether it was a centre of main of main interest which entitled bankruptcy proceedings to be initiated was not always comprehensively examined, nor were people, by the courts. A court’s capacity to examine such an issue is dependent on whether there is a challenge to the bankruptcy proceedings taking place within a particular jurisdiction. A court that receives a submission or documentation on behalf of an individual would normally rely on the veracity of what is being said unless it is challenged. Perhaps in the early days of the enormous difficulties being experienced in this State when some individuals went to the UK the issue was not adequately examined. It was not challenged by individuals who might have had an interest in challenging it. We now see that the regime is operating differently and the UK courts have delivered a number of judgments in the area. There is now a greater focus on establishing whether there is truly jurisdiction when someone seeks bankruptcy, particularly individuals who have lived for a substantial number of years in another State.

Part of the discussion on the directive is how to ensure greater uniformity in the application by domestic courts of the concept of centre of main interest. As we do not have the final form of the directive I cannot say, hand on heart, with certainty how, at the end of the process, the impact of the directive will be interpreted. There are certain guidelines from the European Court of Justice that apply in this area and the directive has to ensure it meets those guidelines. Certainly the conversation relating to the directive is contributing to a uniform view at political level. That is important for synergy between the court systems and the provisions contained in the regulation which expressly provide for greater contact between courts dealing with insolvency issues, that is, between judges in one jurisdiction and another.

That will contribute substantially to a greater uniformity of approach particularly in circumstances where an individual may seek to be declared bankrupt in one jurisdiction while creditors try to have him or her declared bankrupt in another jurisdiction. We are at the early stages of proceedings but it can make an important contribution. However, it will depend ultimately on what emerges in the final form of the regulation. It is of huge importance that we are a party to the negotiations on the regulation. Already four working groups have been chaired by Ireland in the context of the Presidency. I understand that very good progress is being made within those working groups. I expect the regulation will be discussed further at the European Council of justice Minister's meeting in June but matters will not be finalised and the discussions will continue. It is important that Ireland not only chairs meetings up to the end of June but that we participate in the discussions to complete the final framing of the regulation after June.