Are the courts of England and Wales establishing themselves as a flexible forum for cross-border enforceability? Here, we consider this question in light of two recent High Court decisions: Re Silverpail Dairy (Ireland) Unlimited Co. [2023] EWHC 895 (Ch) (Silverpail) and Invest Bank PSC v El-Husseini & Ors [2023] EWHC 2302 (Comm) (Invest Bank).
It is a cornerstone of English insolvency law and practice that creditors of a company in financial difficulty should share rateably (“pari passu”) in that company's assets. Put at its simplest, creditors with security should be paid before creditors with no security and unsecured creditors should share rateably between each other. Where an unconnected and unsecured creditor is paid before another creditor in the same category, that payment risks being set aside as a "preference", should the company subsequently enter liquidation or administration. But when does a preference occur?
The Supreme Court’s recent judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25 is a significant decision for the law of directors’ duties.
The Autumn budget will have done little to ease the concerns of companies facing significant trading pressures as the country tries to get back on its feet following the pandemic, the ongoing effects of Brexit, the Ukraine conflict and the current cost of living crisis. Inflation has now topped its forecasted peak at 11.1%; there are soaring energy prices and the UK is now officially in recession.
On 5 October 2022, the Supreme Court delivered its long awaited judgment in BTI 2014 LLC V Sequana SA [2022] UKSC 25 dismissing an appeal by BTI. Lord Reed and Lady Arden each gave their own judgments which concurred, largely applying the same reasoning, with the judgment of Lord Briggs with whom Lord Kitchen and Lord Hodge agreed.
The Dutch Supreme Court has confirmed the decision of the Amsterdam Court of Appeal, which found that the bankruptcy of the Russian based oil company, Yukos, could not be recognised in the Netherlands because it violates Dutch public policy.
The High Court of Hong Kong refused to allow a Chapter 11 Trustee to disclose a Decision from Hong Kong winding up proceedings in the US bankruptcy court. The US proceedings were commenced to prevent a creditor from taking action following a breach of undertakings given to the Hong Kong court in circumstances where the company had no jurisdictional connection with the US.
The Australian Federal Court has clarified the limitations for foreign entities and their office holders in pursuing action in Australia to access the voidable transaction provisions of the Australian Corporations Act.
Control to Serbian Creditors- the amendments to the Serbian Insolvency Act
The recent amendments to the Serbian Insolvency Act enacted 9 December 2018 have placed more control into creditors’ hands allowing them to suggest the insolvency administrator to be appointed, as well as providing less restrictive provisions on the proposers of reorganisation proposals.
In October 2018 Judge Glenn of the United States Bankruptcy Court (New York) considered the common law principles of comity and the English common law Gibbs rule to grant recognition of a Croatian company's settlement agreement which modified both New York and English law.
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