In Buccament Bay, 2014 EWHC 3130 (Ch), Strauss QC (DJ) dealt with the preliminary jurisdictional issue of whether the court should exercise its jurisdiction to hear winding-up petitions, based on largely undisputed debts, when neither of the companies concerned is incorporated in England (they are incorporated in Saint Vincent and the Grenadines, ‘SVG’).
[I have a copy of the judgment courtesy of Richard Clark, who with Patrick Cook authored this review of the judgment. Judgment was issued on 3 October but has not yet appeared in BAILII].
The judgment does not start with what logically it ought to have done, namely application of COMI per the EU’s Insolvency Regulation. Instead, Strauss DJ first considers the application of Section 221(1) of UK the Insolvency Act 1986, which i.a. gives the court jurisdiction to wind-up foreign companies as ‘unregistered’ companies, provided, subject to relevant case-law, that there be sufficient connection with England. He decides there is not (in particular because the condition is not satisfied, required under relevant precedent, that the petitioners derive benefit from the winding up). It is only after having rejected application of Article 221(1) that the court summarily returns to COMI under the Insolvency Regulation. Arguments pro and contra (which also fed into the Section 221(1) analysis) are helpfully summarised by Anna Jeffrey here. They led, justifiably I believe (albeit that reference to ECJ precedent here, would have been helpful) to a finding on COMI being outside the EU.
This is then where the High Court comes to the most interesting part of the judgment, even if it was obiter (at 25). Namely that even had COMI being in the UK, the English court could still exercise constraints /room for manoeuvre, applying Section 221(1), including recourse to forum non conveniens. In the words of Strauss DJ, ‘the only effect of Article 3(1) [of the Insolvency Regulation] is to give the court jurisdiction, which it has anyhow under English domestic law, to open insolvency proceedings. Where a company’s COMI is in this country, it is highly likely that, by definition, the court will be satisfied that there is a substantial connection with this country, but otherwise the discretionary factors will be the same. In this case, even if I had been satisfied that the respondents’ COMI was here, it would still have made no sense to make winding up orders in a case which is obviously much more suitable for the SVG courts.‘
Respectfully, I disagree. Article 3(1) simply supersedes Section 221(1) in cases where COMI is in the UK. It generally supersedes national jurisdictional rules, again, provided COMI is in the EU. Article 221(1) being a jurisdictional rule and not one of substantive UK insolvency law (which applies as lex concursus), it cannot have calling had COMI been in England.
That leaves the overall question, whether the Insolvency Regulation accommodates forum non conveniens (it certainly does not have a formal rule on it, in contrast with the Brussels I recast). Although there is to my knowledge no ECJ case-law on this, it is quite likely that neither Regulation nor most definitely the ECJ have sympathy for FNC. (See my posting on Kemsley for the issue of anti-suit injunctions and the Regulation).