Which system is better? One-tier or two-tier-board system? Where is the COMI of ThyssenKrupp AG

Resumen o Introducción

Which system is better?

It’s a matter of fact, that in stock company the management leads the business and not the shareholders itself. In Germany, we have a Management Board (MB) and a Supervisory Board (SB).
The SB should monitor the MB, to anticipate that the MB doesn’t act in the interest of the shareholders and creditors. For Example, in the form of inadequate salary payment, inadequate redundancy payments and nepotism.
In the unitary-board system of the UK aren’t exist a SB, but there are so- called Executive directors which operates beside the Non-executive directors. The Executive directors have the same function like the SB in the German stock company.

The dual board system is prescribed by law for German stock corporations.
The Management Board (MB) is appropriate for managing the enterprise. Its members are jointly accountable for the management of the concern. The Chairman of the MB coordinates the work of the MB.
The Supervisory Board (SB) appoints, supervises and advises the member of the MB and is directly involved in decisions of fundamental importance to the company.
The Members of the SB are chosen by the shareholders at the General Meeting. In enterprises having more than 500 or 2000 employees in Germany, employees are also represented in the SB. In practice, the dual-board system is also established in other continental European countries.
The unitary-board system, which exists in the UK, has only one organ, the board...

Where is the COMI?

One of the performances of cross-border insolvency is that debtors may seek to open proceedings in a state having insolvency legislation more favourable to their particular circumstances. This is labelled as “forum shopping”. The Regulation attempts to stop forum shopping by requiring that the main proceeding be opened in the member state where the debtor’s “centre of main interests” (COMI) is situated.
According to Art. 3 EU Insolvency Regulation, the international Courts of the particular Member state are responsible for the opening of an insolvency proceeding, where the debtor’s centre of main interest is. The European Court of Justice (ECJ) assumes that this is basically there, where „the debtor’s registered office “is. It’s where the administration of its interests "on a regular basis“is and it must be „therefore ascertainable by third parties."