Not infrequently a debtor who is made insolvent or declared bankrupt in a foreign jurisdiction has assets in England and Wales. Creditors and insolvency practitioners (“IPs”) looking to lay claim to the assets in England must first follow certain steps to obtain recognition of the foreign insolvency by the English courts.
The two key legal frameworks for recognition of foreign insolvency in the English courts are found in the Insolvency Act 1986 (“IA”) and the Cross Border Insolvency Regulations 2006 (“CBIR”). The fundamental requirement to recognition is the presence of assets in England & Wales.
In this article we consider both routes and the relevant criteria that must be satisfied. To avoid costly mistakes, it is important creditors and IPs comply with all the rules set out in the relevant legislation, as well as providing the English courts with all the information that the courts typically require.
Insolvency Act 1986
The IA grants wide powers for the English courts to exercise jurisdiction in respect of foreign insolvency. The provision allowing co-operation between courts in relation to insolvency is section 426:
(4) The courts having jurisdiction in relation to insolvency law in any part of the United Kingdom shall assist the courts having the corresponding jurisdiction in any other part of the United Kingdom or any relevant country or territory.
(5) For the purposes of subsection (4) a request made to a court in any part of the United Kingdom by a court in any other part of the United Kingdom or in a relevant country or territory is authority for the court to which the request is made to apply, in relation to any matters specified in the request, the insolvency law which is applicable by either court in relation to comparable matters falling within its jurisdiction.
The list of ‘relevant countries and territories’ can be found in the Co-operation of Insolvency Courts (Designation of Relevant Countries and Territories) Order 1986. If the jurisdiction is one of the “relevant countries”, then a request for assistance can be made.
Upon request from a relevant country or territory, the English court can choose to apply either English law or the laws of the jurisdiction in which the insolvency originated.[1] This is a useful discretion for the creditor or IP as it means that the creditor or IP can elect for the most favourable law in the circumstances to be applied. This is an important tactical consideration before making an application to the English courts.
The English courts will generally assist under the IA unless there is a powerful reason not to.[2] Often when a request for assistance is refused it is for failure to provide all the required information rather than a reluctance to provide assistance.
Cross Border Insolvency Regulations 2006
The CBIR provides that a “foreign representative” may seek assistance from the English courts in connection with foreign insolvency proceedings.[3] The foreign representative must be “authorised in a foreign proceeding to administer the reorganisation or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.”[4][5] An official receiver or insolvency practitioner would qualify as a foreign representative.
Under the CBIR, either the foreign court or representative creditor/IP can apply to the English courts for assistance.[6] When making an application for recognition of foreign proceedings, the applicant must disclose to the English court any consequential effects of recognition on third parties (such as the bankrupt or creditors of the insolvent company). Particularly where the application is without notice, all known circumstances surrounding the insolvency/bankruptcy will need to be disclosed to the court. It follows that insolvency and bankruptcy registers in the relevant jurisdictions should be checked for competing proceedings that may block an application to the English court.
On a successful application, the English court can grant the administration or realisation of all or part of the assets, or can entrust distribution of all or part of the assets to the applicant (provided that the court is satisfied the interests of any creditors in England & Wales are adequately protected).
Letter of Request
In both cases (i.e. under the IA and the CBIR), an application for a Letter of Request (“LoR”) to be issued will first need to be made to the court of the home jurisdiction of the insolvency or bankruptcy. The LoR should be from the originating court to the English court, requesting that it provide assistance in relation to the target assets.
When preparing a LoR, one should bear in mind the following:
- The request should be specific; courts will not be inclined to entertain a vague or overly broad request.
- The request should specify the assets of the bankrupt or insolvent over which the court is being asked to grant receivership.
- Check the status of the bankrupt or insolvent’s interest, beneficial or otherwise, in the assets at the time of making the application.
- Check that there are no live parallel proceedings or applications which may affect the court’s ability to grant the request.
Which route should I take – the IA or CBIR?
Assuming that the foreign insolvency in question originated in an approved country or territory,[7] one will generally have the option to take either the IA or CBIR route to achieve recognition in England & Wales.
The IA is typically easier to navigate and more straightforward than the CBIR.
However, the CBIR provides that in the case of any conflict, the CBIR will take precedence over the IA.[8] The court will also consider if there is any possibility of recognition under the CBIR when determining an application under s.426 IA;[9] this creates a risk that an application made only under s.426 IA could fail if the court decides that the applicant could obtain recognition under the CBIR.
The appropriate course for each application must be taken on its own facts. In the event that on assessment there is no obvious benefit to either route, both avenues may be pursued by one application to cover all eventualities. The benefit being that the court then has discretion to grant recognition under either the IA or the CBIR as it sees fit. If two parallel applications are made, as opposed to one application under both the IA and the CBIR, that risks the court deciding that one of the applications is redundant or that a decision should not be taken on one until both can be determined.
Conclusion
The English courts have demonstrated their willingness to recognise foreign insolvency proceedings. It is, however, critically important to ensure compliance with the relevant legislation, and that the LoR is sufficiently comprehensive to meet the requirements often set down by the English courts.
Before embarking upon this route, creditors/IPs should fully investigate the status of the assets in England and whether there are any other creditors or complications. The process can be time consuming but it can provide a fruitful avenue for creditors/IPs seeking to settle the insolvent’s debts.
Should you require assistance in respect of cross-border insolvency, or any related matter, please contact Hannah Jones of Rosenblatt at hannah.jones@rosenblatt.co.uk and/or Sajid Suleman of No5 Chambers at ssu@no5.com.
[1] The Court of Appeal in Hughes v Hannover Ruckversicherungs-Aktiengesellschaft [1997] APP.L.R. held that the courts could apply their own inherent general jurisdiction, substantive English insolvency law or the substantive insolvency law of the foreign jurisdiction.
[2] England v Smith [2001] Ch 419; McGrath and Others v Riddell and Another [2008] UKHL 21.
[3] Article 1(1)(a), Schedule 1, CBIR 2006.
[4] Article 2(j), Schedule 1, CBIR 2006.
[5] Article 2(i) Schedule 1, CBIR 2006 defines “foreign proceeding” as “a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganisation or liquidation.”
[6] Articles 15 & 25, Schedule 1, CBIR 2006.
[7] See footnote 1 above.
[8] Regulation 3, CBIR 2006.
[9] Chen v Li [2021] 7 WLUK 158 at [33].
