30 / 210
R. EMERJ, Rio de Janeiro, v. 19, n. 74, p. 9 - 65. 2016
28
do seu centro dos interesses principais, a fim de definir qual será o juízo
competente para o caso:
"The universalist solution is to modify the COMI definition to
provide that the corporate group venue decision be based
on the collective COMI of all the legal entities that operate
together as an integrated economic unit. Thus where two ou
more companies are economically integrated and operate as
a single economic group, the COMI decision for the corpo-
rate group would displace a decision based on the COMI of
the separate legal entities. In contrast, where a company is
not integrated into the group as a single economic unit, the
court should decide its proper venue separately based on the
location of its COMI […]."
46
Em contraponto a essa visão, o professor Lynn M. LoPucki, forte
crítico do sistema universalista, critica o posicionamento do supracitado
magistrado, sustentando que a análise da integração econômica estaria
maculada por uma inaceitável subjetividade
47
.
4. O SISTEMA TERRITORIALISTA
O enquadramento da insolvência na condição de processo que ob-
jetiva administrar e alienar os bens do devedor (estatuto real) conduz ao
sistema territorialista. Conforme lição do professor Lynn LoPucki, “‘
Territo-
46 BUFFORD, Samuel L. "
Global Venue Controls Are Coming: A Reply to Professor LoPucki
".
Penn State Law eLibra-
ry.
Disponível em:
<http://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1162&context=fac_works>, p. 136-137.
Acesso em: 04.05.2016, p. 136-137.
47 O professor LoPucki continua sua critica, exemplificando seu raciocínio: “‘Economic integration’ as it is used here
has no generally accepted definition. Judge Bufford appears to propose as his test whether the entities in question
are “able to operate separately”. Judge Bufford claims that “this kind of decision will not likely arise often”. Under his
test, venue would depend on which assets should be reorganized or liquidated together. One need only examine a few
cases to see that, contrary to his assertion, the issue would arise in virtually every big case. Did Eastern Airlines need
its shuttle to survive? Should the more than one thousand funeral homes in the Loewen Group be kept together or
liquidated separately? Was MCI so integrated into Worldcom’s finances and operations that it was impractical for the
court to separate them? Should the pipelines of Enron have been reorganized together as a network, or sold off one by
one? Each of these issues was core to a bankruptcy case. The issues were resolved by companies’ managers and profes-
sionals, in interactions with representatives of creditors and shareholders over periods of months or years. Often, the
parties resolved them by taking a wait-and-see approach. Judge Bufford would have the bankruptcy court resolve them
in 40 days at the beginning of the case – as a prerequisite to determining which court should have the case.” LOPUCKI,
Lynn M. "
Universalism Unravels"
.
American Bankruptcy Law Journal
, junho de 2005. Disponível em:
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=732123>. Acesso em: 17.03.2016, p. 12-13.