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SINGAPORE JOURNAL OF LEGAL STUDIES

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    English Fixed and Floating Charges in German Insolvency Proceedings: Unsolved Problems under the New European Regulation on Insolvency Proceedings

    Citation: [2002] Sing JLS 271
    The article deals with English fixed and floating charges and their recognition under the new European Insolvency Regulation on Insolvency Proceedings 2002. With the EU-Regulation on Insolvency Proceedings coming into force on 31 May 2002 one has to be aware of even more diversified international cross-border insolvency rules. Its aim is to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts and tribunals in insolvency proceedings, which have an intra-Community dimension. The Regulation is, therefore, only applicable for insolvency proceedings where the centre of the debtor's main interest, ie in the absence of proof to the contrary the place of the registered office, was situated within the European Union (intra-Community insolvencies). The EU-Regulation does not solve the problems of English security rights in other European jurisdictions. The article analyses to what extent English security rights are enforceable in Germany. English security rights are in various aspects not in compliance with the German public policy rule which has to be applied according to Article 26 of the EU-Regulation. Despite the fact English security rights can qualify as a right in rem under Article 5 of the EU-Regulation the public policy rule prevents their enforceability in German insolvency proceedings. As a result, English security rights, as they exist today, cannot secure English creditor interest effectively as regards assets situated in Germany.
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