On 18 December 2018 the English Court of Appeal held in the case of OJSC International Bank of Azerbaijan that the rule in Gibbs is still a fundamental tenet of English insolvency law and not to be sidestepped by the Cross-Border Insolvency Regulations.

Facts

The facts in summary are these:

In a decision widely anticipated by investors in emerging market and distressed debt, the Court of Appeal has upheld the decision of the High Court to refuse to grant an indefinite moratorium on claims under certain English law debts under the Cross Border Insolvency Rules (“CBIR”). In doing so, the Court of Appeal has reaffirmed a long-standing principle of English common law that provides important protection to creditors; known as the Rule in Gibbs, the rule provides that a debt may only be discharged according to its own governing law.

On 13 September 2018, the UK Government published a guidance notice (Guidance) on handling civil disputes, including cross-border insolvencies, in the event that the UK exits the EU without having first agreed a framework for ongoing civil judicial cooperation, and from which time and date (11 pm on 29 March 2019) the UK will not benefit from the EU rules to replace the current arrangements.

REGULATORY & GOVERNMENTAL AFFAIRS  Noerr  EUROPANEWS  Issue 32/2018  08 – 12 October 2018    Content  LAW ___________________________________________________________________________________________ 1 POLITICS/GENERAL _______________________________________________________________________________ 2 DECISIONS ______________________________________________________________________________________ 3 FROM THE OJEU _________________________________________________________________________________ 3 BRUSSELS INTERN ______________________________________________

English law restructuring and insolvency tools are used to implement financial restructurings and the external administration of foreign companies. The attractiveness of the English tools and legal system is highlighted by the prevalence of companies incorporated abroad, especially companies incorporated in the EU, which avail themselves of those tools. English law in this area is impacted by much European law.

KEY POINTS Investors seek reliable information, legal certainty, predictability of outcome and the

opportunity to participate in a rescue and/or restructuring which will recover value. The Recast European Insolvency Regulation (the `Recast EIR') should, at least in part,

help investors meet those objectives. It is hoped that the Recast EIR will encourage greater investment (including distressed

Over the Bank holiday weekend, the UK government announced that it intends to introduce new legislation to implement certain measures (detailed below) as soon as parliamentary time permits.

Obvious issues which come up in a cross-border insolvency context include the jurisdiction / court in which proceedings should be commenced (choice of jurisdiction), which law should be applied to resolve a particular problem (choice of law) whether the judgment of one court will be recognized and enforced in another court (recognition) and how parallel insolvency processes relating to the same debtor should interact (co-operation).

The EIR

Germany needs more professional insolvency courts: this is the opinion of more than 90 per cent of the experts surveyed in the insolvency law analysis “InsO Survey 2018” which has now been presented by the management consulting firm McKinsey & Company and the law firm Noerr.

An effective and well-equipped insolvency and restructuring regime gives confidence to investors and financiers, enabling credit to flow through to businesses and boost economic activity, growth and innovation.