Lydian international. The Jersey courts on universalism and cross-border insolvency.

In Representation of Lydian international Limited [2020] JRC 049 MacRae DB refers to universality in insolvency proceedings only once,  namely where he refers to authority at 20. Yet his approach in honouring the request for assistance, made by the courts at Ontario ‘on the basis of comity’, walks and talks like universality. This is of course reminiscent of Menon CJ’s recent speech on the issue, or similar decisions elsewhere.

‘Though there is no precedent in Jersey for a Canadian CCAA order or similar order being enforced or recognised in relation to a Jersey company, we had no doubt that we should assist the Canadian Court in this case.  There were no reasons of Jersey public policy impeding the court making the orders sought.  To the contrary, it is consistent with Jersey’s status as a responsible jurisdiction for the Royal Court to lend assistance in order to facilitate an international insolvency process in a friendly country that has a potential to benefit the creditors of the Lydian Group as a whole.’ The Deputy Bailiff also notes that key Jersey creditors and the Jersey corporation of the Lydian group itself were represented in the Canadian proceedings.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

 

Menon CJ of Singapore’s Supreme Court on cross-border insolvency.

Many thanks to Filbert Lam for alerting me to Menon CJ’s most exquisite 2018 speech on cross-border insolvency law. His honour’s talk addresses forum shopping (including for cram down reasons), the Model Law, a most enlightening comparison between international commercial arbitration (particularly: the New York Convention’s role) and insolvency, and of course modified universalism (on which see also this recent post by Bob Wessels, with ia analysis of the EU position). A delightfully sharp observation of key elements of international insolvency practice and policy.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

Supreme Tycoon: common law power to recognise and assist foreign insolvency proceedings extends to voluntary liquidations.

Thank you colleagues at Hogan Lovells for flagging [2018] HKCFI 277 Supreme Tycoon in which the Hong Kong Court of First Instance ruled that the common law power to recognise and assist foreign insolvency proceedings extends to voluntary liquidations.

In so ruling, the court rejected the Privy Council obiter finding in Singularis (see the HL link above) highlight the Court’s rather convincing arguments in not following the Privy Council, including one I like a lot namely that the principle of modified universalism, the rationale underlying the common law power of assistance, and the purpose of cross-border insolvency assistance do not prima facie call for a distinction between compulsory and voluntary winding-up.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 5, Heading 5.1.