(Readers may want to search my earlier postings tagged ‘COMI’ for general context to the Insolvency Regulation and Centre of Main Interests).
Northsea Base Investment was first flagged to me early March by Bob Wessels, who expertly summarises facts and finding. Insolvency administrators were appointed out of court, however sought a High Court declaration finding COMI for the eight insolvent companies in England. Such finding assists with the ease of international travel of the administrators’ decisions. With ships sailing all over Europe and further afield, any decisions by the administrators are likely to have to be enforced outside of England. The sole shareholder of the holding company is incorporated in Nevis (the Saint Kitts and Nevis Federation) and in turn is held by three family trusts also based in Nevis. Marine Cross is a shipping agent incorporated in the UK with its registered offices in London. The companies are the only client of Marine Cross. All eight of the applicant companies are incorporated in Cyprus, share the same company registered office in Cyprus and have essentially the same form of Cypriot corporate documents.
Birss J held using the well established criteria in particular of Eurofood (in a group of companies, COMI has to be decided for each of them with individual legal personality) and Interedil (emphasis on third party ascertainability in the case of attempts to rebuke Article 3(1)’s presumption in favour of registered office being COMI) and settled on Marine Cross being the most relevant factor in determining COMI vis-a-vis the shipping companies: COMI being England. For the relevant holding companies (their Nevis-based shareholders were out of the equation), the High Court observed that these do not have operational functions. It held that their relations with London-based banks under financial agreements, all subject to English law and English jurisdiction, determined COMI as being in England, too.
The case is a good reminder that even intricate SPV structures should not detract from COMI finding on well-established principles.