KCA Deutag UK Finance PLC, Re (In the Matter of the Companies Act 2006) [2020] EWHC 2977 (Ch) is in most part a classic scheme of arrangement sanctioning hearing, with the scheme proposed by a UK-incorporated company with COMI undisputedly there, too. See a range of posts on the blog for the classic jurisdictional analysis.
What is slightly out of the ordinary is the contractual commitment by the creditors not to oppose the scheme in foreign jurisdictions. Snowden J, at 33:
In this case, two things give me that comfort. The first is that there was an overwhelming vote by Scheme Creditors in favour, and a very large number of such creditors entered into a lock-up agreement which bound them contractually to support the Scheme and not to do anything to undermine it. It is very difficult to see how such creditors who contractually agreed to support the Scheme and/or who voted in favour could possibly be allowed to take action contrary to the Scheme in any foreign jurisdiction, and the number and financial interests of those who did not vote in favour is comparatively very small indeed. That alone is sufficient to demonstrate to me that the Scheme is likely to have a substantial international effect and that I would not be acting in vain if I were to sanction it.
I would intuitively have felt quite the opposite, although detail is lacking (e.g. was the commitment given as a blank cheque before the details of the scheme were known): such contractual commitment even if valid under (presumably; no details are given) English law as the lex contractus of the commitment, could serve to undermine international effectiveness. For I would not be surprised if creative counsel on the continent could find a range of laws of lois de police or ordre public character, to try and object to contractual commitment to sign away the right to oppose.
Geert.
(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5. Third edition forthcoming February 2021.
gavc law - geert van calster 