The European Union goes Comi-tose: hazards of harmonizing corporate insolvency laws in the global economy.

(149.) See Charles J. Tabb, The History of Bankruptcy Laws in the United States, 3 AM. BANKR. INST. L. REV. 5, 6 (1995) (noting that America, like Ireland, initially followed English common law with respect to treatment of debtors). This is similar to Ireland, which also initially followed English common law with respect to treatment of debtors. 2 COLLIER INT'L BUS. INSOLVENCY GUIDE [paragraph] 27.01[2][b] (Richard F. Broude et al. eds., 2006).

(150.) Tabb, supra note 149, at 6-7 (citing U.S. CONST. art. I, [section] 8, cl. 4).

(151.) Id. at 12-13 (citations omitted) (noting that federal bankruptcy laws existed only from 1800 to 1803, from 1841 to 1843, and from 1867 to 1878).

(152.) Id.

(153.) Id. at 13 (citing Symposium, Contemporary Issues in Bankruptcy and Corporate Law: "A View from the Bench", 61 U. CIN. L. REV. 511, 513-14 (1992)) (noting the single vote against the inclusion of the clause carried the power to punish bankruptcies by death).

(154.) See, e.g., id. at 16-17 (discussing the Bankruptcy Act of 1841 and noting that America departed from English precedent by providing debtors the right to voluntarily petition for bankruptcy in 1841, a few years before England did the same).

(155.) See id. at 25-26 (citing the Bankruptcy Act of 1898, Ch. 541, 30 Stat. 544 (repealed in 1978)). The Act of 1898, however, was not actually aimed at expanding relief for the debtor. Id. at 25. Rather, Congress intended to facilitate a more equitable and efficient administration and distribution of the debtor's property to creditors. Id.

(156.) Id. at 27 (citing Ch. 412 [section] 3, 36 Stat. at 839 (1910)) (noting the act's extension of eligibility for voluntary bankruptcy to "[a]ny person except a municipal, railroad, insurance, or banking corporation").

(157.) See id. at 28-30.

(158.) Id. at 32 (discussing the Act of 1978).

(159.) See 11 U.S.C.A. [section] 1101 et Seq (West Supp. 2006).

(160.) See id. [section] 1101(1) (defining "debtor in possession"). The management of a debtor corporation ordinarily remains in control of the corporation after filing its bankruptcy petition. Id. [section] 1104(a) (listing the instances in which a court may appoint a trustee to replace a debtor in possession; such instances require evidence of fraud or some sort of mismanagement).

(161.) Id. [section] 1121(a).

(162.) Id. [section] 330(a)(1) (including "reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and reimbursement for actual, necessary expenses" as a right of a debtor-in-possession).

(163.) See, e.g., McAuley, supra note 105 (discussing the recent Italian insolvency reforms).

(164.) See, e.g., Nathalie Martin, Common-Law Bankruptcy Systems: Similarities and Differences, 11 AM. BANKR. INST. L. REV. 367, 374 (2003) (noting that English bankruptcy common law is founded upon the mantra that "once bankrupt, always bankrupt" while American history demonstrates more forgiveness) (citing Lucinda Kemeny & Garth Alexander, Blair Chases American Dream, TIMES (London), Feb. 18, 2001, at A1).

(165.) See generally Thomas H. Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 HARV. L. REV. 1393 (1985) (discussing policy underlying U.S. bankruptcy law, discharge, and prohibitions); see also Tabb, supra note 149, at 17 (noting a pro-debtor attitude in American bankruptcy law).

(166.) James M. Olstead, Bankruptcy: A Commercial Regulation, 15 HARV. L. REV. 829, 831 (1901) (noting that the framers were aware that bankruptcy was punishable by death in England but determined not to grant such a power in America).

(167.) DALHUISEN, supra note 107, [section] 3.05[3]. See generally Commission Decision (EC) No. 1403/2000 of 16 May 2000 (OJ 2000 L79/29) (discussing the 1979 Italian act in relation to European Community treaties on the subject of the aid scheme implemented by Italy to assist large firms in difficulty).

(168.) See DALHUISEN, supra note 107, [section] 3.05[3] (describing the aim of the procedure as "orderly transfer").

(169.) McAuley, supra note 105.

(170.) Id.

(171.) Id. (discussing the concardato preventivo and accordi di ristrutturazione dei debiti procedures).

(172.) Id.

(173.) See id. (noting that the new Italian procedures give complete discretion to the administrator rather than involving committees of creditor classes, as is the case in American Chapter 11 proceedings); 11 U.S.C. [section] 1102 (2000) (providing for the appointment of unsecured creditors committees and any other committees the U.S. trustee deems necessary).

(174.) See supra Part IV.1.

(175.) See supra Part IV.2.

(176.) See 2 COLLIER INT'L BUS. INSOLVENCY GUIDE [paragraph] 27.04[2] (Richard F. Broude et al. eds., 2006) (noting that creditors are the most common party to present winding up petitions when the debtor is unable to satisfy his debts).

(177.) See McAuley, supra note 105.

(178.) See In re Eurofoods, [2005] I.L.Pr. 2, 2004 WL 3222613 at * 30 (July 27, 2004) (Ir.) (discussing the Companies Act, 1963 (Irl.)).

(179.) 2 COLLIER INT'L BUS. INSOLVENCY GUIDE [paragraph] 27.08[8] (Richard F. Broude et al. eds., 2006).

(180.) Id. [paragraph] 27.09[1] (discussing the examinership procedure) (citing Companies (Amendment) Act, 1990 (as amended) [section][section] 2-7).

(181.) Id. For example, Irish courts wanted to maintain jurisdiction over Eurofood to appease the main creditor, Bank of America, an American corporation. See In re Eurofoods, [2005] I.L.Pr. 2, 2004 WL 3222613 at * 30-34 (discussing Irish law and arguing that the COMI is Ireland).

(182.) See id. (demonstrating a bias for determining that the COMI is Ireland by discussing the Italian court's arguments only briefly and with disapproval).

(183.) See Robert K. Rasmussen, Debtor's Choice: A Menu Approach to Corporate Bankruptcy, 71 TEX. L. REV. 51, 100-07 (1992) (discussing the options the Bankruptcy Code provides for corporate debtors).

(184.) See generally Susan Block-Lieb, Why Creditors File So Few Involuntary Petitions and Why the Number is Not Too Small, 57 BROOKLYN L. REV. 803, 803-05 (1991) (discussing the reasons why debtors ordinarily file petitions voluntarily rather than creditors filing an involuntary petition).

(185.) See Rasmussen, supra note 183, at 100-07.

(186.) See McAuley, supra note 105.

(187.) Nathalie Martin, The Role of History and Culture in Developing Bankruptcy and Insolvency Systems: The Perils of Legal Transplantation, 28 B.C. INT'L & COMP. L. REV. 1, 47-49 (2005) (noting that countries like Germany may allow for reorganization but are very biased toward corporate debtors, resulting in courts leaving the debtor's financial future in the hands of its creditors).

(188.) See 11 U.S.C.A. [section] 1520(a)(1) (West Supp. 2006); see also id. [section][section] 361-362.

(189.) The Bankruptcy Code defines a "foreign main proceeding" as "a foreign proceeding pending in the country where the debtor has the center of its main interests." Id. [section] 1502(4). This definition, however, does not specify whether the court should make its own determination or whether the court should defer to foreign courts' findings regarding whether such a proceeding is a main proceeding. See E.U. Insolvency Regulation, supra note 29, at L160/5.

(190.) Chapter 11 provides creditors the right to participate in the drafting and approval of a plan of reorganization. 11 U.S.C. [section][section] 1121, 1126; see also supra Part IV.1.

(191.) See E.U. Insolvency Regulation, supra note 29, at L160/3.

(192.) See, e.g., Case C-341/04, Bondi v. Bank of Am., N.A., 2006 E.C.R. 1-3813 (Sept. 27, 2005) (umpiring the fight between Irish and Italian courts over the proper jurisdiction for Eurofood's bankruptcy).

(193.) See generally McAuley, supra note 105 (comparing the bankruptcy law and policy of several European nations and the United States).

(194.) See Martin, supra note 187, at 52; Westbrook, Theory and Pragmatism, supra note 86, at 482-83 (noting foreign courts that are accustomed to liquidations, such as English courts, may struggle to apply unfamiliar reorganization schemes).

(195.) See LoPucki, Global and Out of Control?, supra note 53, at 95 ("If [the ECJ] rules--as it probably must--that the decision of the first court to hear the case is binding on later courts, it will be a green light for court competition.").

(196.) Id. See generally Case C-341104, Bondi v. Bank of Am., N.A., 2006 E.C.R. I-3813 (Sept. 27, 2005) (holding that the court in which the bankruptcy action was first filed is the court with main jurisdiction over the bankruptcy).

(197.) See, e.g., Bufford, supra note 85, at 107-08.

(198.) See id. at 132-34 (discussing the need to notify all interested parties and provide them with the opportunity to be heard before making a COMI determination).

(199.) See LoPucki, Global and Out of Control?, supra note 53, at 97-98 (detailing the ease in moving a corporation's headquarters, assets, and all other grounds by which a court may determine the COMI). See generally Bufford, supra note 85, at 139 (suggesting a residency requirement similar to that used in the United States to prevent a corporation from changing its COMI).

(200.) See supra Parts III-IV (discussing how policies, procedures, and regulations differ from country to country).

(201.) See E.U. Insolvency Regulation, supra note 29, at L160/1-3, 5.