Page 406 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

adopts a broad understanding of ‘judgment’, as not being limited to a decision that
concludes adversarial proceedings. National courts may differ on this issue, which
63
may be settled ultimately only by the Court of Justice. This potential avenue for
recognition and enforcement was closed when Brexit took effect, as the EU and the

United Kingdom did not agree to continue the application of the Brussels I Regulation
regime post-Brexit (similarly, the 2007 Lugano Convention has also ceased to apply in
the United Kingdom). This outcome, however, might be overcome in scenarios where

the creditors are subject to a choice of court agreement in favour of English courts in
their relationship with the company subject to the scheme. The effectiveness of the

English decision embodying the scheme could be secured by the 2005 Hague Convention
on Choice of Court Agreements, which applies in the United Kingdom as well as in the
European Union.
64
An alternative way, at least for schemes that concern facility agreements
governed by English law, would be to rely on the applicable law regime provided in

the Rome I Regulation. If the scheme is understood as a substantive law amendment
of the terms of the relationship between the company subject to the scheme and each
of its creditors, the Rome I Regulation could secure that a creditor seeking to enforce

its claims in another EU Member State would be bound by the amendment of its
contractual rights under the applicable law, rendering the scheme effective abroad.
66
65
This will not change following Brexit. The provisions of the Rome I Regulation constitute
the autonomous private international law of the Member States and also apply vis-à-vis
third countries. Similar considerations may apply in respect of the new restructuring
67
plan process.

63 In favour of a broad interpretation BGH, IV ZR 194/09, 15 Feb. 2012, para. 41.
64 This would be subject to the condition that schemes of arrangement (as well as restructuring plans) are
covered by the Convention and fall outside of its insolvency exclusion provision. See, similar discussion in footnote 59.
65 Rome I Regulation, Arts 3, 12.
66 Re Rodenstock GmbH [2011] EWHC 1104 (Ch), para. [76].
67 Rome I Regulation, Art. 2.

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