registration and enforcement of russian bankruptcy orders ...€¦ · bankruptcy if the debtor: (a)...

3 Hare Court · London · EC4Y 7BJ [email protected] www.3harecourt.com

@thomasroeqc

Registration and enforcement of Russian bankruptcy orders

in England & Wales

Thomas Roe QC

3 Hare Court · London · EC4Y 7BJ [email protected]

www.3harecourt.com @3HareCourt

Closely based on UNCITRAL Model Law 1997

Purpose of Model Law:

‘to establish simplified procedures for the recognition of qualifying foreign proceedings [and to] avoid time-consuming legalisation […] and provide certainty with respect to the decision to legalise.’

Cross-Border Insolvency Regulations 2006



• Application to High Court by ‘foreign representative’: ‘person or body […] authorised in a foreign proceeding to administer the reorganisation or the liquidation […] or to act as a representative of the foreign proceeding.’

• Formal requirements for application: certified copies of decision commencing the foreign proceedings, translations etc.

• ‘An application for recognition of a foreign proceeding shall be decided upon at the earliest possible time.’

• If formal requirements are met, foreign proceeding ‘shall be recognised.’

How to ask for recognition of foreign proceedings

in England.



Recognition of a ‘foreign main proceeding’ automatically:

• Stays all claims against the debtor

• Stays all execution against the debtor’s assets

• Suspends debtor’s right to deal with assets

Recognition of any foreign proceedings gives the court power to ‘grant any appropriate relief’

Why to ask for recognition of foreign proceedings

in England.



• Recognition ‘intended to have in the recognising state [i.e. in England & Wales] the same effect as if the insolvency proceedings had been opened in the recognising state’ (Larsen v Navios International Ltd)

• ‘any type of relief that is available under the law of [England & Wales] and needed in the circumstances of the case’ (Guide to the Enactment of the UNCITRAL Model Law)

‘any appropriate relief’



‘Relief’ expressly includes: ‘providing for the examination of witnesses,

the taking of evidence or the delivery of information concerning the debtor's assets, affairs, rights, obligations or liabilities

‘entrusting the administration or realisation of all or part of the debtor's assets located in Great Britain to the foreign representative or another person designated by the court’

‘granting any additional relief that may be available to a British insolvency officeholder under the law of Great Britain’

‘standing [under Insolvency Act]’



‘In granting or denying relief […] or in modifying or terminating relief under […], the court must be satisfied that the interests of the creditors (including any secured creditors or parties to hire-purchase agreements) and other interested persons, including if appropriate the debtor, are adequately protected.’

But: interests of creditors and other interested persons



C Brooks Thurmond, III v Rajapaske [2008] BPIR 283: bankrupt ordered to send UK income to the US bankruptcy.

Williams v Simpson [2011] BPIR 938: a hunt for hidden gold in New Zealand.

Akers v Deutsche Bank AG [2012] BCC 786: compelling bank to disclose dealings with the debtors.

In re OGX Petroleo e Gas SA [2016] Bus LR: a trap not to fall into.

Some examples, and a trap



Companies

Insolvency Act 1986, s. 221(5), foreign company can be wound up:

‘(a) if the company is dissolved or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;

(b) if the company is unable to pay its debts;

(c) if the court is of opinion that it is just and equitable that the company should be wound up.’

Free-standing English insolvency proceedings?



Stocznia Gdanska SA v Latreefers Inc [2001] B.C.C. 174

‘(1) There must be a sufficient connection with England and Wales which may, but does not necessarily have to, consist of assets within the jurisdiction.

(2) There must be a reasonable possibility, if a winding-up order is made, of benefit to those applying for the winding-up order.

(3) One or more persons interested in the distribution of the assets of the company must be persons over whom the court can exercise jurisdiction’

See Banque des Marchands de Moscou v Kindersley [1951] Ch 112; Re A Company (No. 000359 of 1987) [1988] Ch 210; Re OJSC Ank Yugraneft [2008] EWHC 2614



Individuals

Insolvency Act 1986, s. 265, court can order bankruptcy if the debtor:

‘(a) is domiciled in England and Wales,

(b) is personally present in England and Wales on the day on which the petition is presented, or

(c) at any time in the period of 3 years ending with that day—

(i) has been ordinarily resident, or has had a place of residence, in England and Wales, or

(ii) has carried on business in England and Wales.’

See Geveran Trading Co Ltd v Skjevesland [2002] EWHC 2898 (Ch); Bank of Moscow v Kekhman [2015] EWHC 396 (Ch), [2015] 1 WLR 3737



Thomas Roe QC

T: +44 (0)20 7415 7800

@thomasroeqc

[email protected]

registration and enforcement of russian bankruptcy orders ...€¦ · bankruptcy if the debtor: (a)...

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