Page 402 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

has been subject to relevant qualifications that in some cases have impeded effective
cooperation with foreign insolvencies. These include the impossibility to obtain relief

in England that would not have been available under the lex concursus, the limitation
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of assistance to main proceedings (excluding secondary proceedings) or the requirement
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that decisions given by the insolvency court satisfy the conditions of recognition and
enforcement of ordinary foreign judgments before they can produce any effect in the
English territory. 46

Compared to the extent of the cooperation available under the European

Insolvency Regulation, the limitations evidenced by these three mechanisms make it
difficult to predict the level of assistance that courts and practitioners responsible for
insolvency proceedings opened in an EU Member State will be able to obtain from

English courts. The Insolvency Regulation continued to apply in the United Kingdom
until 31 December 2020, with the consequence that during this period the treatment
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that English courts gave to insolvency and pre-insolvency proceedings opened in

EU Member States did not change. Those proceedings and the decisions made therein
were automatically recognised, the effects of such recognition were governed by the
law of the opening State and the insolvency practitioners appointed in the country of

origin were allowed to operate in the English territory without further requirements.
Considered from the point of view of foreign companies, courts and practitioners,

the benefits of this arrangement were obvious. However, it failed to address the main
threat that Brexit poses to the insolvency and restructuring industry, i.e., the effectiveness
of English proceedings abroad. Even if the United Kingdom had decided to include the

European Insolvency Regulation as part of the ‘retained EU law’ applicable in the United
Kingdom as ‘domesticated’ law after the transition period, the solution would have
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been insufficient. The unilateral nature of such measure would not have captured the
multilateralism of the European Insolvency Regulation, whereby the opening of one

44 Singularis Holdings v. PricewaterhouseCoopers [2014] UKPC 36.
45 Shaker v. Al-Bedrawi [2002] EWCA Civ 1452, para. [66].
46 Rubin v. Eurofinance SA, [2012] UKSC 46.
47 European Union (Withdrawal) Act 2018.

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