4 Private International Law

Abstract

This chapter begins by analysing the relevant Private International Law rules under EU law. This analysis distinguishes between non-insolvency and insolvency law rules. Outside of insolvency, the rules for the determination of jurisdiction and the recognition of court judgements, as well as the rules for the determination of the law to be applied, are to be found in different statutory EU instruments. If the dispute at hand qualifies as an insolvency matter, an important distinction must be made regarding the qualification of the parties. If the insolvent entity - whether that be the collateral provider or collateral taker - qualifies as an investment firm or a credit institution, the court's jurisdiction is to be determined under the Winding-up Directive, or, more precisely, under the relevant, national rules implementing this Directive. If the insolvent entity does not qualify as an investment firm or a credit institution, the European Insolvency Regulation (EIR Recast) determines the jurisdiction of the insolvency court and the law that the court must apply. The chapter then considers US law in the contexts outside of insolvency and within insolvency, both with respect to questions of jurisdiction in the event of a dispute between the parties as well as of choice of the law governing securities holdings and dispositions.