Page 403 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

ฉบับพิเศษ ประจำ�ปี 2564

Member State to foreign proceedings is reciprocated by the equal treatment that national
proceedings will receive abroad. From the point of view of the remaining EU Member
48
States, proceedings opened in the United Kingdom fall outside the scope of the European
Regulation from the day of Brexit on 31 January 2020. For that reason, the United Kingdom
st
passed the Insolvency (Amendment) (EU Exit) Regulations 2019, which largely
repealed the European Insolvency Regulation and also amend the Insolvency Act 1986
to reflect this.

As a result, it the pre-Brexit regime is to be reinstated, the United Kingdom and

the European Union will have to conclude an international convention that transposes
the content of the Insolvency Regulation. Currently, this does not seem to be a priority.
49

V. Schemes of Arrangement Post-Brexit

The jurisdiction of English courts to sanction a creditor scheme is subject to

two preconditions: (i) the scheme company must be ‘liable to be wound up under the
Insolvency Act 1986’; and (ii) the company must have a sufficiently close connection
50
with England. 51

Under the Insolvency Act 1986, the court has jurisdiction to wind up companies

registered under successive Companies Acts and unregistered companies. The latter
52
53
include companies incorporated under the law of a foreign country. For companies
54
incorporated and with their COMI in the EU, the jurisdictional rules of the European
Insolvency Regulation seemed to override the English courts’ jurisdiction to wind up

48 The same concern can be voiced with regard to any other instrument of EU law that is based on reciprocal
recognition and enforcement, such as the Brussels I Regulation recast.
49 Financial Markets Law Committee, Issues of Legal Uncertainty Arising in the Context of the Withdrawal
of the UK from the EU – the Impact on Cross-Border Insolvency Proceedings (August 2017) paras 2.5, 2.8.
50 Companies Act 2006, s. 895(2)(b).
51 Re Rodenstock GmbH [2011] EWHC 1104 (Ch), para. [20]; Real Estate Development Co [1991] BCLC
210, 217.
52 Insolvency Act 1986, s. 117(1).
53 Ibid., ss 220, 221.
54 Re Rodenstock GmbH [2011] EWHC 1104 (Ch) para. [19].

401