Page 404 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

a company that had neither its COMI nor an establishment in England. However,
55
English courts did not adopt this line of reasoning. In their view, the European Insolvency

Regulation had no bearing on their scheme jurisdiction at all. A scheme of arrangement
56
is not a ‘public collective proceedings, including interim proceedings, which are based

on laws relating to insolvency and in which, for the purpose of rescue, adjustment of
debt, reorganisation or liquidation:

(a) a debtor is totally or partially divested of its assets and an insolvency
practitioner is appointed;

(b) the assets and affairs of a debtor are subject to control or supervision by a
court; or

(c) a temporary stay of individual enforcement proceedings is granted by a court
or by operation of law, in order to allow for negotiations between the debtor

and its creditors, provided that the proceedings in which the stay is granted
provide for suitable measures to protect the general body of creditors, and,
where no agreement is reached, are preliminary to one of the proceedings

referred to in point (a) or (b).’ (article 1 European Insolvency Regulation).

Moreover, the scheme of arrangement was not listed in Annex A and thus fell
outside the scope of application of the European Insolvency Regulation, which was
never intended to have an impact on the scheme jurisdiction of English courts. The
57
Brussels I Regulation posed similar issues. It confers exclusive jurisdiction to wind up
a solvent company on the courts of the Member State where the company has its seat;

and refers for jurisdictional purposes to the domicile of the defendant. Even if the

55 For a detailed account, see J Payne, Schemes of Arrangement (CUP 2014) 286–324.
56 Re Drax Holdings Ltd [2003] EWHC 2743 (Ch); Re DAP Holdings NV [2005] EWHC 20192 (Ch); Re
La Seda de Barcelona SA [2010] EWHC 1364 (Ch); Re Rodenstock GmbH [2011] EWHC 1104 (Ch); Re Primacom
Holding GmbH [2012] EWHC 164 (Ch); Re Sovereign Marine & General Insurance Co Ltd [2006] EWHC 1335;
Re APCOA Parking Ltd [2014] EWHC 997 (Ch); Re APCOA Parking Holdings GmbH [2014] EWHC 1867 (Ch);
Re APCOA Holdings GmbH [2014] EWHC 3849 (Ch).
57 Van Gansewinkel Groep BV & Ors, Re [2015] EWHC 2151 (Ch) paras 37–40.

402