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Brussels I Regulation did apply to schemes in general, which is doubtful, the winding up
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jurisdiction would probably not have been relevant because schemes are not meant to

result in the (solvent) dissolution of the scheme company. It is also difficult to see how
the scheme creditors could be deemed to ‘be sued’. In any case, Article 8 of the Brussels

I Regulation could be relied on to safely confer jurisdiction on the English courts,
provided at least one scheme creditor was domiciled in England. Following the UK’s
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exit from the EU, these jurisdictional concerns are no longer relevant for the English

courts’ scheme jurisdiction.

The second prerequisite requires a sufficiently close connection of the scheme
company with England. This is undoubtedly the case where the scheme company carries
on business, has assets or even its COMI in England. However, a sufficient connection
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may also be found to exist merely on the basis that the relevant rights of the scheme
creditors are governed by English law and that there is an exclusive or non-exclusive
jurisdiction clause in favour of the English courts, even where the facility agreement
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is only subsequently amended to that effect on the basis of majority creditor consent. 62
When exercising their discretion, English courts will also consider whether the

scheme, if sanctioned, has any chance of being recognized and enforced in the scheme
company’s home jurisdiction. The European Insolvency Regulation could and cannot

be relied upon. If one takes the view that the Brussels I Regulation applied in general,
the question was whether the order sanctioning a scheme amounted to a ‘judgment’ to
be automatically recognized. This could have been answered in the affirmative if one

58 The arguments on both sides are summarized in Van Gansewinkel Groep BV & Ors, Re [2015] EWHC
2151 (Ch) paras 42–44: schemes might be excluded pursuant to Art. 1(2)(b) referring to the winding up of insolvent
companies and related proceedings, including ‘judicial arrangements and compositions’; the ‘being sued’ terminology
does not seem to fit at all; on the other hand, the European Insolvency Regulation and Brussels I Regulation are meant
to dovetail into one another with no overlap or gap so that schemes involving solvent companies (or even insolvent
companies unless in formal insolvency proceedings) would fall within the scope of Brussels I.
59 Van Gansewinkel Groep BV & Ors, Re [2015] EWHC 2151 (Ch) para. 51.
60 Indiah Kiat International Finance Co BV [2016] EWHC 246 (Ch).
61 Re Rodenstock GmbH [2011] EWHC 1104 (Ch) para [68]; Van Gansewinkel Groep BV & Ors, Re
[2015] EWHC 2151 (Ch) para. [68].
62 Re APCOA Holdings GmbH [2014] EWHC 3849 (Ch) paras [227]–[245].

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