Hooley [Hooley v The Victoria Jute Company Ltd and others [2016] CSOH 14] has been sitting in my in-box for a few months. It concerns the liquidation (particularly: selling of companies’ assets by liquidators under Scots law) of companies incorporated in Scotland but with COMI (centre of main interests) outside the EU. In particular, India.
Given the presence of COMI outside the EU, the Insolvency Regulation does not apply. Indeed the Court of Session (Lord Tyre) does not refer to it at all.Findings would have been very different were the Regulation to apply: place of incorporation has to give way to COMI, where these two do not coincide, in which circumstance the place of incorporation at best may open secondary proceedings.
At issue was among others (and for the first time in a Scots court, I understand) the consideration of ‘modified universalism’: ie what is the practical impact of there being a company incorporated in Scotland, given Scots courts and administrators jurisdiction over the insolvencies, when the companies’ business is mainly carried out abroad and when proceedings are also pending abroad.
Per Rubin v Eurofinance, Universalism” means the “administration of multinational insolvencies by a leading court applying a single bankruptcy law.” The principle of modified universalism was stated by Lord Sumption in Singularis Holdings Ltd v Pricewaterhouse Coopers [2015] AC 1675 (PC) at para 15 as being that “the court has a common law power to assist foreign winding up proceedings so far as it properly can” (see also Lord Collins at paragraph 33 and Lord Clarke of Stone‑cum‑Ebony at paragraph 112).
Essentially Lord Tyre had to decide whether the Scottish administrators’ powers were only exercisable to the extent that their exercise was recognised as legally valid by the law of the relevant non-UK jurisdiction. He held (at 36) that the proceedings taking place in India were ancillary to the administration proceedings in Scotland. The powers of a validly appointed administrator to a Scottish company were therefore not limited by the Indian winding up.
As often of course this judgment is but one side of the coin. Indian courts are at liberty to disregard the Scots findings. Any purchasers of Hooley assets therefore will have a compromised title. One assumes this has an impact on price.
Geert.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.1, Heading 5.5.
Reinhard Bork, Principles of Cross-Border Insolvency Law, Intersentia, 2017, ISBN 9781780684307, 290 pp., EUR 94.
The thesis of this book is that cross-border insolvency rules of all kinds (e.g. European Insolvency Regulation, UNCITRAL Model Law, ALI Principles for the NAFTA States, national laws such as Chapter 15 US Bankruptcy Code or Sch. 1 Cross-Border Insolvency Regulation 2006) are founded on, and can be traced back to, basic values and that they aim to pursue and enforce such standards. Furthermore, several principles can be identified, distinguished and sorted into three groups: conflict of laws principles (e.g. unity, universality, equality, mutual trust, cooperation and communication, subsidiarity, proportionality), procedural principles (e.g. efficiency, transparency, predictability, procedural justice, priority) and substantive principles (e.g. equal treatment of creditors, optimal realisation of the debtor’s assets, debtor protection, protection of trust (for secured creditors or contractual partners), social protection (for employees or tenants)). Using the principle-oriented approach, the book will have a significant impact for both deciding cases and shaping cross-border insolvency law. It offers both legislators and courts new substantive and methodological support in making decisions, for example where the treatment of secured creditors, support for foreign insolvency practitioners or even harmonisation of cross-border insolvency laws is at stake.
Publié au JOUE du 23 décembre 2016, le nouveau code de conduite des membres et des anciens membres de la Cour de justice de l’Union européenne avait été adopté conjointement par la Cour de justice et le Tribunal. Entré en vigueur le 1er janvier 2017, il abroge et remplace le code de conduite adopté en 2007.
This book is a collection of papers presented at the 24th traditional conference Corporate Entities at the Market and European Dimensions. The conference was organized on 19-21 May 2016 in Portoroz, Slovenija, by the Institute for Commercial Law Maribor and the Faculty of Law of the University of Maribor. It was co-financed by the European Commission within the project Remedies concerning Enforcement of Foreign Judgements according to Brussels I Recast. The e-version is available for browse or download here. Many interesting topics of private international law are dealt with under the title in particular related to the implementation of the Brussels I bis Regulation. The list of papers includes:
A General Overview of Enforcement in Commercial and Civil Matters in Austria
Philipp Anzenberger
A General Overview of Enforcement in Commercial and Civil Matters in Lithuania
Darius Bolzanas & Egidija Tamosi?nien? & Dalia Vasarien?
Changed Circumstances in Slovene Case Law
Klemen Drnovsek
A General Overview of Enforcement in Commercial and Civil Matters in Italy
Andrea Giussani
Law Aspects of Servitization
Janja Hojnik
Removal of Exequatur in England and Wales
Wendy Kennett
Cross Border Service of Documents – Partical Aspects and Case Law
Urska Kezmah
Diputes regarding the use of distributable profits and ensuring a minimum dividend and balance shee-financial aspects of canceled resolutions d.d.
Marijan Kocbek & Saša Prelic
Subscribers Liabilities to Subcontractor Under Directive 2014/24/EU and ZJN-3
Vesna Kranjc
Certan Open Issues Regarding the Refusal of Enforcement Under the Brussels I Regulation in Slovenia
Jerca Kramberger Skerl
Owerview of the Croatian Enforcement System With Focus on the Remedies
Ivana Kunda
Selected Issues of Recognition and Enforcement of Foreign Judgments from the Prespective of EU Member States
Ji?i Valdhans & Tereza Kyselovská
Editing Working Relationships of Companies Directors (Managerial Staff)
Darja Sencur Pecek
The Order Problem of the Acquisition of Derivative rights in the Event of Realestate Owner Bankruptcy
Renato Vrencur
The Brussel Regulation Recast – Abolishing the Exequatur Maintaining the Exequatur Function?
Christian Wolf
Cross-border Legal Representation as Seen in a Case Study
Sascha Verovnik
Une requête est irrecevable dès lors que les voies de recours internes n’ont pas été épuisées, de simples doutes quant aux perspectives de succès d’un recours donné ne constituant pas une raison valable pour justifier la non-utilisation des recours en question, précise la Cour européenne des droits de l’homme dans une décision rendue le 15 décembre 2016.
Perquisition - Secret de l'instruction
The Centre of European Law at King’s College London is running a series of seminars on the meaning of Brexit and its potential impact on different areas of law. It considers the options for the new legal regime between the UK and the EU, taking into account the international legal framework.
On 26 January 2017 the topic will be Brexit and Private International Law. The Chair will be Professor Jonathan Harris QC.
The seminar will take place at King’s College London – Strand Campus at 6.30 p.m.
For registration and more information, see here.
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