Page 400 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

contrary, they need to be subject to a process of recognition which, unlike the Regulation,
allows the requested court to examine the jurisdiction of the court of origin. In fact,
37
the foreign proceedings will only be recognised if the court is satisfied that the COMI
or at least an establishment of the ailing debtor was located in the opening State. In
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this analysis, the decision of the opening court lacks any binding or presumptive weight.
It is probable that the existence of this test might limit the possibility for the English
courts to assume jurisdiction over foreign debtors when those proceedings are intended

to produce effects outside of the English territory.

If the English proceedings are not recognised, be it because the requested court
rejects the finding of COMI or of an establishment by the opening court or because the
requested State adopts a territorialist model which does not recognise foreign

insolvencies, the part of the insolvent estate located in that territory will escape the
protection afforded by English law. In some cases, this will require the opening of
autonomous proceedings in that jurisdiction and the appointment of a separate insolvency

practitioner.
In addition to the concerns regarding the effect of English insolvency and

pre-insolvency proceedings in EU Member States, the loss of the European Insolvency
Regulation also affects the system of rules available under English law to manage

foreign proceedings. Three sources need to be considered. The most relevant instrument
is the Cross-Border Insolvency Regulations 2006, which internalises the UNCITRAL
Model Law. In line with the previous comments, the Regulations focus on the recognition

of, and cooperation with, foreign insolvencies. Absent any rule on choice of law, the
effects of such recognition will be governed by English law. This includes a moratorium

on new and pending individual proceedings and enforcement actions. English law will
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also define the relief that may be granted upon recognition and the limits of the powers
of the foreign insolvency practitioner acting in England. Given that the Regulations are

37 Articles 16–17 UNCITRAL Model Law.
38 Although in this case the foreign proceeding would be recognized as non-main and assistance would
be subject to judicial discretion.
39 Article 20 UNCITRAL Model Law (included in Sch. 1 of the Regulations). There are a number of
relevant exception to this rule in Art. 20(2-6).

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