TABLE OF CONTENTS TABLE OF CASES TABLE OF STATUTES TABLE OF STATUTORYINSTRUMENTS 1. JURISDICTION TO COMMENCE INSOLVENCY PROCEEDINGS

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1 TABLE OF CONTENTS PREFACE TABLE OF CASES TABLE OF STATUTES TABLE OF STATUTORYINSTRUMENTS PAGE vii xix xxxix xliii 1. JURISDICTION TO COMMENCE INSOLVENCY PROCEEDINGS PARA I. INTRODUCTION II. INSOLVENCY REGULATION (A) The Scope of the Insolvency Regulation (1) Entities outside the Insolvency Regulation (2) COMI (3) Insolvency proceedings (B) International Jurisdiction under the Insolvency Regulation III. JUDGMENTS REGULATION IV. CROSS-BORDER INSOLVENCY REGULATIONS V. CREDIT INSTITUTIONS (REORGANISATION AND WINDING UP) REGULATIONS VI. INSURERS (REORGANISATION AND WINDING UP) REGULATIONS VII. INSOLVENCY ACT (A) Company Voluntary Arrangement and Administration (1) Companies (2) Partnerships (B) Winding-Up (1) Companies (2) Partnerships xi Ho, Look Chan Cross-border insolvency: principles and practice digitalisiert durch: IDS Basel Bern

2 xii CONTENTS 2. JURISDICTION TO SANCTION SCHEMES OF ARRANGEMENT I. INTRODUCTION II. JURISDICTION TO SANCTION A SCHEME IS DEPENDENT ON THE WINDING-UP JURISDICTION III. THE IMPACT OF EU LEGISLATION ON THE ENGLISH COURT'S WINDING-UP JURISDICTION IV. WHETHER THE INSOLVENCY REGULATION CURTAILS THE ENGLISH COURT'S INSOLVENT SCHEME JURISDICTION V. WHETHER THE JUDGMENTS REGULATION CURTAILS THE ENGLISH COURT'S SOLVENT SCHEME JURISDICTION VI. INTERFACE BETWEEN THE JUDGMENTS REGULATION AND AN INSOLVENT COMPANY'S SCHEME VII. PUBLIC INTEREST WINDING-UP IS IRRELEVANT TO THE SCHEME JURISDICTION VIII. RELEVANCE OF "SUFFICIENT CONNECTION" IX. SUMMARY OF THE CHAOTIC STATE OF THE LAW RECOGNITION OF FOREIGN INSOLVENCY PROCEEDINGS I. INTRODUCTION II. INSOLVENCY REGULATION III. JUDGMENTS REGULATION IV. CROSS-BORDER INSOLVENCY REGULATIONS (A) The Scope of the British Model Law (1) Applicable proceedings and entities (2) Relationship with other cross-border insolvency regimes (B) The British Model Law's Interpretation Framework (C) Key Concepts under the British Model Law (1) Foreign court (2) Foreign main proceeding (3) Foreign non-main proceeding and establishment (4) Foreign proceeding (5) Foreign representative (D) Recognition of Foreign Insolvency Proceedings (1) Application for recognition (2) Presumptions concerning recognition (3) Decisión to recognise foreign proceedings 3-088

3 CONTENTS xiii (4) Subsequent Information (E) Public Policy Exception V. SECTION 426 OF THE IA VI. FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT VII. ADMINISTRATION OF JUSTICE ACT VIII. COMMON LAW (A) Formal Insolvency Proceedings (B) Court Receivership IX. CREDIT INSTITUTIONS (REORGANISATION AND WINDING UP) REGULATIONS X. INSURERS (REORGANISATION AND WINDING UP) REGULATIONS XI. BANKING ACT 2009 AND THIRD-COUNTRY CREDIT INSTITUTION ENFORCEMENT OF FOREIGN INSOLVENCY PROCEEDINGS I. INTRODUCTION II. INSOLVENCY REGULATION (A) General Effects of Recognition III. JUDGMENTS REGULATION IV. CROSS-BORDER INSOLVENCY REGULATIONS (A) Interim Relief upon Application for Recognition (B) Automatic Effects of Recognition of a Foreign Main Proceeding (C) Relief that may be Granted upon Recognition (1) Recognition and enforcement of foreign insolvency judgments (2) Recognition and enforcement of foreign bankruptcy discharge (3) Turnover of assets (4) Antecedent transaction avoidance (D) Protection of Creditors and Other Interested Persons (E) Avoidance of Antecedent Transactions (F) Intervention by a Foreign Representative (G) Cooperation with Foreign Courts and Foreign Representatives 4-050

4 xiv CONTENTS (H) Cooperation and Direct Communication between the British Insolvency Officeholder and Foreign Courts or Foreign Representatives (I) Forms of Cooperation (J) Concurrent Proceedings (1) Commencement of a proceeding under British insolvency law after recognition of a foreign main proceeding (2) Coordination of a proceeding under British insolvency law and a foreign proceeding (3) Coordination of more than one foreign proceeding (4) Presumption of insolvency based on recognition of foreign main proceeding (5) Rule of payment in concurrent proceedings (K) Access of Foreign Representatives and Creditors to Local Courts (1) Right of direct access (2) Participation of a foreign representative in a proceeding under British insolvency law (3) Access of foreign creditors to a proceeding under British insolvency law V. SECTION 426 OF THE IA VI. COMMON LAW (A) Forms of Assistance (1) Stay of proceedings (2) Ancillary liquidation (3) Remittal of assets (4) Recognition and enforcement of foreign insolvency judgment (5) Recognition of foreign bankruptcy discharge (6) Access to local information (7) Use ofenglish insolvency officeholder's statutory powers VII. CREDIT INSTITUTIONS (REORGANISATION AND WINDING UP) REGULATIONS (A) Credit Institutions Directive's Recognition Scheme (B) CIWUR's Implementation of Credit Institutions Directive's Recognition Scheme VIII. INSURERS (REORGANISATION AND WINDING UP) REGULATIONS IX. BANKING ACT 2009 AND THIRD-COUNTRY CREDIT INSTITUTION 4-123

5 CONTENTS xv 5. CHOICE OF LAW IN THE CONTEXT OF CROSS-BORDER INSOLVENCY I. INTRODUCTION II. INSOLVENCY REGULATION (A) Exceptions to General Enforcement (1) Antecedent transaction avoidance (2) Rights in rem (3) Set-ojf, payment Systems and financial markets (4) Reservation of title (5) Immoveable property, ship, aircraft and securities (6) Contraéis of employment (7) Patents and trade marks (8) Pending lawsuits and arbitral proceedings III. CROSS-BORDER INSOLVENCY REGULATIONS (A) Application of foreign law: The position in principie (B) Application of foreign law: Executory contracts (C) Application of foreign law: Avoidance of antecedent transactions IV. SECTION 426 OF THE IA V. COMMON LAW (A) Antecedent transaction avoidance (B) Set-off VI. CREDIT INSTITUTIONS (REORGANISATION AND WINDING UP) REGULATIONS (A) Credit Institutions Directive's Choice of Law Scheine (B) CIWUR's Implementation of Credit Institutions Directive's Choice of Law Scheme (1) Antecedent transaction avoidance (2) Rights in rem (3) Set-off, netting, repurchase agreements, and regulated markets (4) Reservation of title (5) Immoveable property, ship, aircraft and securities (6) Lex rei sitae (7) Contracts of employment (8) Pending lawsuits VII. INSURERS (REORGANISATION AND WINDING UP) REGULATIONS (A) Solvency 2 Directive's Choice of Law Scheme (B) IWUR's Implementation of Solvency 2 Directive's Choice of Law Scheme (1) Antecedent transaction avoidance 5-076

6 xvi CONTENTS (2) Rights in rem (3) Set-off and regulated markets (4) Reservation of title (5) Immoveable property, ship, aircraft and securities (6) Contraéis of employment (7) Pending lawsuits INSOLVENCY POLICY AND THE PARI PASSU PRINCIPLE I. INTRODUCTION II. ROLE OF INSOLVENCY LAW III. PRINCIPLE OF PARI PASSU DISTRIBUTION (A) Two Versions of Pari Passu Principle (B) Pari Passu and Equality (C) Pari Passu and Collectivity (D) Confused Thinking in Case-Law (E) The Correct Understanding oí Pari Passu IV. IMPLICATIONS FOR CROSS-BORDER INSOLVENCY (A) Ancillary Liquidation (B) Hotchpot (C) Anti-Suit Injunction (D) Discretionary Relief under the Model Law (E) Recognition of Foreign Insolvency Discharge V. CONCLUSION REVISED UNCITRAL MODEL LAW ENACTMENT GUIDE: A CRITIQUE I. INTRODUCTION II. THE REVISED GUIDE'S BACKGROUND AND KEY RECOMMENDATIONS III. THE REVISED GUIDE'S RECOMMENDATIONS ON COMI'S ELEMENTS SEEM CRYPTIC IV. THE REVISED GUIDE'S JUSTIFICATIONS FOR ITS COMI TIMING RECOMMENDATION SEEM UNTENABLE (A) Present Tense (B) Evidence Accompanying Recognition Application (C) Clarity (D) Certainty V. THE REVISED GUIDE'S COMI TIMING TEST SEEMS INCOMPATIBLE WITH THE MODEL LAW'S LETTER, SPIRIT AND POLICY 7-026

7 CONTENTS xvii VI. THE PROJECT TO REVISE THE ORIGINAL GUIDE SEEMS HARD To JUSTIFY VII. CONCLUSION PAGE Index 345

Table of Contents. 1. Introduction...1

Table of Contents. 1. Introduction...1 Table of Contents 1. Introduction...1 1.1 The EU Private International Law Insolvency System...1 1.2 History of the Regulation...5 1.3 From Convention to Regulation...6 1.4 Goal and Method of the Regulation...8