COMI Debate continued from page 37 debtors to change the forum selection clause multiple times over the course of the company’ s business. While it is true that COMI can be moved or manipulated— many courts have accepted the concepts of " COMI migration " and " good forum shopping "— its relocation is typically evaluated in light of the interests of all current creditors and stakeholders, once the insolvency proceeding is initiated and social policy considerations are accounted for. In contrast, the Commitment Rule operates as a non-transparent, privately chosen mechanism that lacks the safeguards of broader judicial scrutiny. The notion that vulnerable creditors will be adequately protected through the preferential ranking of their claims, with disregard for their preferences by the selected jurisdiction serving as grounds for denying recognition, is an insufficient response to a critical social policy issue. Moreover, the concept of vulnerable creditors is far from straightforward. States differ significantly in how they define degrees of vulnerability and assess the ability of insolvency law to protect such creditors. Another challenge arises from the potential misalignment between the timing of recognition requests and the enforceability
38 of preferential rights. Vulnerable creditors often lack the technical expertise and financial resources necessary to assert their claims in a foreign proceeding. UNCITRAL has invested significant effort in promoting cooperation. The Model Law should enhance direct cooperation and the recognition of foreign proceedings, rather than undermining these efforts by adding additional grounds for denying cooperation.
1. Conclusion:
The past quarter-century has exposed several deficiencies in the COMI concept, and Professors Anthony J. Casey, Aurelio Gurrea- Martínez, and Robert K. Rasmussen deserve recognition for sparking this critical debate. However, despite its limitations and areas for improvement, COMI remains the second-best option available. Furthermore, the MLCBI is fundamentally built around the COMI concept, and removing this central pillar would destabilize the entire framework. Rather than advancing the principle of modified universalism— which encourages states to collaboratively develop solutions— these proposals lean toward privatizing forum selection, undermining the core objectives of the MLCBI.
My primary concern, however, lies with the response of emerging economies. Countries that have recently adopted the MLCBI or are contemplating its adoption may be reluctant to recognize foreign decisions if it becomes apparent that a company’ s commercial ties to its home country are irrelevant, and that private ordering determines jurisdiction. While forumselection clauses are acceptable in contractual relationships— given their basis in mutual consent and private autonomy— insolvency law operates under fundamentally different principles, prioritizing collective interests over private preferences. Expecting judges to cooperate fully with foreign authorities when a company is incorporated in their jurisdiction but elects to use a foreign court for reorganization is unrealistic. This issue is further exacerbated in civil law countries, where direct judicial communication and cooperation are less established practices.
The notion that certain countries offer superior restructuring frameworks is misleading and should not justify forum selection clauses. UNCITRAL and other international organizations should focus on equipping all nations with robust and effective legislation, rather than creating a dichotomy between( insolvency) dispute resolution hubs and peripheral jurisdictions. Additionally, legal systems improve through practical application and engagement with real cases, making handson experience an essential driver of legislative refinement.
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