Posts Tagged COMI
Forum shopping and personal insolvency. The High Court (briefly) in Wilson and Maloney (in re McNamara). Is this the last UK reference to the CJEU?
 EWHC 98 (Ch) Wilson and Maloney (bankruptcy trustees of Michael McNamara), concerns mostly Article 49 TFEU (freedom of establishment) and Article 24(1) of the Citizens’ Rights Directive 2004/38 (equal treatment). (At 114) the critical question is whether the exclusion of pension rights on bankruptcy is something that can impact on the right of establishment, or is otherwise within the scope of Art 49 TFEU.
The substantive case at issue concerns the inclusion or not of in investment in a certain pension scheme, into the bankruptcy. My interest in the judgment lies in the succinct reference to forum shopping under insolvency regimes.
Mr McNamara was made bankrupt on 2 November 2012 on his own petition, presented that day. Prior to his bankruptcy Mr McNamara had been a high profile property developer operating primarily, if not exclusively, in the Republic of Ireland. But he and his wife had moved to London in July 2011, and the Court accepted that he had moved his centre of main interests (or COMI) from Ireland to England by the date of presentation of the petition.
Nugee J decided to refer to the CJEU for preliminary review (this having happened on 23 January, clearly one of the last if not the last UK reference to go up to the CJEU). Whether COMI was moved for forum shopping purposes is not likely to feature in the eventual judgment – for there does not seem to be any suggestion that the move of COMI to England had not been properly established.
Chapter 15 is the typical entry gate for a foreign insolvency practitioner to engage in US bankruptcy proceedings – it is also the general jurisdictional gateway for US courts viz international insolvencies, COMI and insolvency tourism discussions etc. By way of example see Norton Rose’s 2017 overview here.
In Ema Garp Fund v. Banro Corp., Case No. 18-01986 Law360 summarise the outcome as it stands (I understands motion to appeal has been filed) as follows: ‘Canada’s Banro Corp. won’t face a suit in New York federal court alleging the mining company lied to investors about its operations in the Democratic Republic of Congo after a judge ruled (..) that those claims were resolved last year in bankruptcy proceedings in Canada.’
Kelly Porcelli excellently reviews the issues here, with justified emphasis on comity considerations – I am happy to refer.
One for the comparative litigation ledger.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.5, Heading 5.6.
Zetta Jet: COMI, time of filing, forum shopping, ordre public in insolvency. A comparative law Fest in Singapore.
An interesting comparison may be made between  SGHC 53 Re Zetta Jet Pte Ltd and  EWHC 2186 (Ch) Videology on which I reported here. Both concern recognition of foreign main (or not) proceeding under of the UNCITRAL Model Law on Cross-Border Insolvency (“the Model Law”). Zetta Jet came to me courtesy of my former student Filbert Lam, and has now also been analysed to great effect by Tan Meiyen and colleagues here.
The judgment is a master class on COMI determination, but also on comparative legal analysis re time of filing etc.: best read judgment and Tan’s note for oneself. Of particular note are
- the expression of sympathy by Aedit Abdullah J for forum shopping in insolvency law; compare also with Ocean Rig, and Kekhman; here this took the particular form of following the US approach to selecting the date on which the application for recognition is filed, as relevant to COMI determination (friendlier to forum shopping than the EU’s and England’s date of commencement of the foreign insolvency proceedings);
- the emphasis on the basket of criteria required to identify COMI;
- the narrow approach to ordre public despite Singaporean court order having been defied; yet also the relevance of the fact that these orders post defiance had been varied.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1 et al.
I am working on rather intricate conflicts issues this week (which I am enjoying) so I am turning to the blog for a little cerebral relief (equally pleasing). In  EWHC 1544 (Ch) Deutsche Apotheker- und Arztebank EG v Leitzbach , reported with thanks by Ashfords, Hodge J correctly applied the COMI test of Regulation 1346/2000 to dismiss jurisdiction for the courts in England and Wales.
Dr Leitzbach had obtained a bankruptcy order after a previous attempt in which he had failed to testify to COMI in England and Wales. His, successful, second attempt, it now became clear, was obtained after misrepresentation. Dr Leitzbach’s arguments pro COMI it seems were mostly based on residence in the UK, proof for which he sought to obtain from (in fact non-existing) supermarket loyalty cards, as well as receipts of purchases made hundreds of miles apart within a short time-frame.
Note at 27 Hodge J’s in my view entirely correct sympathy for forum shopping in insolvency: as long as COMI can be correctly ascertained in the jurisdiction, this is an entirely justifiable phenomenon. Except indeed COMI was not in the UK as the High Court equally found:
at 71: ‘I simply cannot accept the evidence of Dr Leitzbach as to the fact that he was living and working …as a consultant in England and Wales at the relevant time. I simply do not accept his evidence to that effect. Secondly, however, I would in, any event, have found that, as a professional dentist who had been practising as such in Germany, Dr Leitzbach had never acquired a COMI in England and Wales…’
at 74: ‘so far as his visibility as a dentist is concerned, third parties would clearly have formed the view that he was continuing to practise with his brother in Germany until the end of 2012. He remained on the appropriate public dental register until the end of 2012. He secured a certificate that he was unfit for dental work at the end of 2011; but even that document was addressed to the former practice address in Hochheim, and it operated simply to relieve the debtor from making contributions to his official German dental pension scheme only until 30 June 2012…Dr Leitzbach accepted..that he was representing to third parties that he remained in practice as a dentist in the Hessen dental register until the end of December 2012. It was that dental practice address that was used by Dr Leitzbach to register himself on the postgraduate dental course that he undertook. He accepted that others on the course would all have assumed that he was continuing to practise as a dentist in Germany. His CV, written for the purpose of a published article in a dental journal, gave the impression that he had worked as a dentist in Germany until the end of 2012, and that, thereafter, his only professional activity was attending the postgraduate dental course.’
COMI never have been in the UK, the carpet was pulled from underneath the previous Bankruptcy order and this had to be annulled.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.
Videology: Snowden J’s textbook consideration of COMI under UNCITRAL Model Law and EU Insolvency Regulations.
Looking at my back queue for blog postings,  EWHC 2186 (Ch) Videology is one I do wish to bring to the attention of my readers. Snowden J refused to recognise proceedings under Chapter 11 of the US Bankruptcy Code (“Chapter 11”) in relation to Videology Ltd as a foreign main proceeding under Article 17 of the UNCITRAL Model Law on Cross-Border Insolvency (“the Model Law”) as incorporated into English law in Schedule 1 to the Cross-Border Insolvency Regulations 2006 (the “CBIR”). He did so because he was not satisfied that the centre of main interests (“COMI”) of the Company was in the US where the Chapter 11 proceedings are taking place. He did, however, grant recognition of the Chapter 11 proceedings as a foreign non-main proceeding.
The Judgment is a master class on COMI determination. Of note are
- at 28 the rejection of, for so long as the UK remains a party to the Recast EIR, any different approach in relation to the concept of COMI under the CBIR/Model Law and the Recast EIR;
- the emphasis on a basket of criteria required to displace the presumption of COMI in place of the registered office;
- at 42 ff the rejection of a narrow focus on, or attachment of overriding importance to, the location in which the directors and senior management act;
- Snowden J’s rejection at 46 ff of the Head Office approach as being determinant under EU law (see also Handbook heading 184.108.40.206.4); and
- the factors referred to eventually to uphold the presumption: at 72: ‘In addition to being the place of its registered office, the UK is where the Company’s trading premises and staff are located, where its customer and creditor relationships are established, where it administers its relations with its trade creditors on a day-to-day basis using those premises and local staff, and where its main assets (the receivables and cash at bank) are located. All of those factors will be visible and immediately ascertainable by the customers, and in particular by the trade creditors, of the Company. The UK is also, importantly, where representations were made to the Company’s main finance creditor that its COMI was situated.’
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1 (specifically also 220.127.116.11.4 for the Head Office discussion).
I thought I had but seemingly had not, flagged Bob Wessels’ timely alert to  COMP 039 Colin King (Supreme Court of Gibraltar). The judgment first of all looks at the temporal scope of application of the Regulation, holding correctly that it is not the filing for bankruptcy which is relevant but rather the time of actual openings of those proceedings. Further, it makes correct application of the various presumptions and definitions vis-a-vis natural persons.
Not a shocking judgment but one which is a good read for a gentle introduction to COMI. And as Bob notes, it was not quite the first to apply the new EIR.
(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.
Agrokor DD – Recognition of Croatian proceedings shows the impact of Insolvency Regulation’s Annex A.
Update 22 November 2018 for the US decision upholding recognition, Case No. 18-12104 (Bankr. S.D.N.Y. Oct. 24, 2018) see review here and here. The US side of the debate essentially refuses to extend the common law Gibbs rule despite considerations of comity.
Update 2 April 2018 For related developments in Slovenia, see Dr Sladic’s analysis here.
The English courts are being asked to recognise Agrokor’s extraordinary administration as a foreign main proceeding under the Cross-Border Insolvency Regulations 2006 (CBIR). For the facts of the case and Hogan Lovells breakdown of the judgment see here.
Of note for this blog is that Croatia have not included the emergency procedure foreseen Agrokor Act in the relevant Annexes to the Insolvency Regulation. Consequently no matter how much the procedure in the abstract meets with the definition of insolvency proceedings, it does not fall under the Insolvency Regulation hence recognition and enforcement of same does not follow that Regulation. Neither does it follow Brussels I Recast: for the procedure most definitely meets with the ‘insolvency’ exception under that Regulation. Matthews J justifiably refers to both in passing only, noting they have no calling here.
Recognition was eventually granted. Despite some serious relevant differences between Croatian and English insolvency law, none of these as so serious as to trigger ordre public objections. As Jake Hardy notes: if no man is an island, nor is any debt obligation – no matter how English it has painted itself to be.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5.