Justifications and limits of lex fori concursus

Abstract

The rule of lex fori concursus provides that the applicable law of an insolvency proceeding is that of the forum in which it is initiated, and it has usually been relied upon as an obvious solution to the universalist claim in cross-border insolvency framework. This paper analyzes its most common justifications, discarding those referring to its nature or the desire for normative unity or equality of creditors, highlighting instead its link with the allocation of international jurisdiction. Thus, the transversality of the solution is questioned, arguing that its implementation depends on a regulatory framework that supports its consistent and predictable application. Based on proximity criteria, I advocate for the identification of personal factors that ensure a procedural and substantive link with the debtor and respect for the general interests of the creditors.