Bailey & Anor (As Foreign Representatives of Sturgeon Central Asia Balanced Fund Ltd), Re [2019] EWHC 1215 (Ch) (17 May 2019)

Bailey & Anor (As Foreign Representatives of Sturgeon Central Asia Balanced Fund Ltd), Re [2019] EWHC 1215 (Ch) (17 May 2019)

A court-ordered winding up of a solvent company on just and equitable grounds under Bermuda law qualifies as a 'foreign main proceeding' under the CBIR and Model Law because the relevant law (section 161 of the Bermuda Companies Act) is a law relating to insolvency, and the proceeding meets the collective, judicial, and liquidation requirements. The actual solvency of the company is not determinative; the focus is on the nature of the law and proceeding. Recognition is granted as all requirements are satisfied, including COMI being in Bermuda.

Citation
[2019] EWHC 1215 (Ch)
Parties
Applicants: Roy Bailey and Keiran Hutchison (as foreign representatives of Sturgeon Central Asia Balanced Fund Ltd)
Jurisdiction
England and Wales
Judgment Date
17 May 2019
Procedural Posture
Application for Recognition of Foreign Insolvency Proceedings / Judgment on Application for Recognition Under Cross Border Insolvency Regulations 2006
Outcome
Application granted
Legal Topics
Recognition of Foreign Main Proceedings, Interpretation of 'foreign Proceeding' Under Model Law, Solvent Liquidation and Just and Equitable Winding Up, Centre of Main Interests (comi)
Insolvency Law Cross Border Insolvency Recognition of Foreign Main Proceedings Interpretation of 'foreign Proceeding' Under Model Law Solvent Liquidation and Just and Equitable Winding Up Centre of Main Interests (comi)

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Parties

Roy Bailey and Keiran Hutchison (as foreign representatives of Sturgeon Central Asia Balanced Fund Ltd)

Applicants

Procedural Posture

Application for Recognition of Foreign Insolvency Proceedings / Judgment on Application for Recognition Under Cross Border Insolvency Regulations 2006

Legal Issues

  1. 1 Whether a solvent company's court-ordered winding up on just and equitable grounds under Bermuda law qualifies as a 'foreign main proceeding' under the Cross-Border Insolvency Regulations 2006 (CBIR) and the UNCITRAL Model Law on Cross-Border Insolvency.
  2. 2 Whether the requirement that a proceeding be 'pursuant to a law relating to insolvency' is satisfied where the company is not insolvent.

Ratio Decidendi

A court-ordered winding up of a solvent company on just and equitable grounds under Bermuda law qualifies as a 'foreign main proceeding' under the CBIR and Model Law because the relevant law (section 161 of the Bermuda Companies Act) is a law relating to insolvency, and the proceeding meets the collective, judicial, and liquidation requirements. The actual solvency of the company is not determinative; the focus is on the nature of the law and proceeding. Recognition is granted as all requirements are satisfied, including COMI being in Bermuda.

Court Disposition

Application granted

Orders

  • Recognition of the winding up proceeding in Bermuda as a foreign main proceeding under the Cross-Border Insolvency Regulations 2006.