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not subject to reciprocity, their regime will be applicable to every insolvency proceeding
opened abroad, including EU Member States.

The second available mechanism is section 426 Insolvency Act 1986, which is

entitled ‘Cooperation between courts exercising jurisdiction in relation to insolvency’.
The main provision is subsection 426(4), according to which the courts having
jurisdiction in relation to insolvency law in any part of the United Kingdom shall assist

the courts having the corresponding jurisdiction in any other part of the United Kingdom
or any relevant country or territory. With the exception of the Republic of Ireland,

EU Member States are not considered ‘relevant country or territory’. This category is
reserved primarily to Commonwealth countries and other jurisdictions with insolvency
law regimes similar to English law. Despite the width of the assistance potentially
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available under this section, it will be necessary to widen its territorial scope if it is to
be of use after Brexit.

The last resource to cooperate with foreign insolvencies is the common law
principle of modified universalism, which can be seen as a derivation of the traditional
notion of comity towards the courts and laws of other jurisdictions. According to the
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well-known words of Lord Hoffman, modified universalism is a ‘primary rule of private
international law […], which has been the golden thread running through English

cross-border insolvency law since the 18th century’. It requires that English courts
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should, so far as is consistent with justice and UK public policy, co-operate with the
courts in the country of the principal liquidation to ensure that all the company’s assets

are distributed to its creditors under a single system of distribution. Notwithstanding
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this overarching declaration of intent, the application of the principle over the last decade

40 These include the Channel Islands, the Isle of Man, Anguilla, Australia, Bailiwick of Guernsey, (including
Alderney and Sark), Bermuda, Botswana, Brunei, Canada, Cayman Islands, Falkland Islands, Gibraltar, Hong Kong,
Malaysia, Montserrat, New Zealand, Republic of Ireland, Republic of South Africa, St. Helena, The Bahamas, Turks
and Caicos Islands, Tuvalu and Virgin Islands.
41 Credit Suisse Fides Trust v. Cuoghi [1998] QB 818, para. [17].
42 Re HIH Casualty & General Insurance Ltd [2008] UKHL 21, para. [30], which confirmed (also) Lord
Hoffman’s approach in Cambridge Gas Transport Corp v. Official Committee of Unsecured Creditors of Navigator
Holding plc [2006] UKPC 26.
43 Ibid.

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