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).
中伦观点
引言
在执行案件中，多个债权人争夺同一被执行人财产的情形并不罕见。在“僧多粥少”的情况下，债权人能否分配到财产以及能分配到多少财产往往取决于债权人是否采取了恰当的措施。由于执行相关法律法规较为繁杂，为了更好地阐述法律观点，本文我们将通过一个真实案件改编的模拟案例对执行程序中财产分配涉及实务问题逐一展开分析。
模拟案例引入
2018年，甲公司向乙公司出借2亿元用于经营，双方签订《抵押合同》约定乙公司将其名下A和B两处不动产抵押给甲公司，抵押范围包括乙公司欠甲公司的借款本金、利息及实现债权的费用。双方办理了抵押登记。因种种原因，两处不动产的登记簿登记显示抵押的债权数额分别为1000万元。后因乙公司无法到期偿还借款，甲公司向Y市法院起诉要求乙公司返回借款本金、利息及实现债权的费用并同时申请查分了乙公司名下C、D和E三处不动产。Y市法院判决乙公司偿还上述所有款项。
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.
Following our previous article, the Court of Appeal dismissed an appeal following the High Court deciding that a moratorium in relation to restructuring proceedings in Azerbaijan could not be extended in breach of the Gibbs rule, allowing two significant creditors to proceed with their claims in the English Courts.
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.
Background
Despite the debtor's contention that his primary residence was in the United States, the Court held that it had jurisdiction to make a Bankruptcy Order following a petition presented by HMRC.
HMRC presented a bankruptcy petition against Robert Stayton on 30 May 2014 who owed approximately £653,640. The matter came before the court on a number of occasions before the final hearing, with judgment being handed down in November 2018.
The Court applied sections 423-425 of the Insolvency Act 1986 (IA) to the transfer of an interest in a Ukrainian television station. When analysing the Defendant's actions the Court considered the transaction was made for a prohibited purpose.
Background