(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Held: Once it was accepted that an English court may order the liquidator here to remit funds to a foreign liquidator, it was clear that that foreign liquidator would apply the local rules for distribution: ‘the court had jurisdiction at common law, under its established practice of giving directions to ancillary liquidators, to direct remittal of the English assets, notwithstanding any differences between the English and foreign systems of distribution. These differences are relevant only to discretion.’
Lord Hoffmann (with whom Lord Walker was in full agreement) said that remission could be ordered at common law. He referred to a ‘general principle of private international law that bankruptcy (whether personal or corporate) should be unitary and universal. There should be a unitary bankruptcy proceedings in the court of the bankrupt’s domicile which receives worldwide recognition and it should apply universally to all the bankrupt’s assets.’ this was ‘a principle rather than a rule . . heavily qualified by exceptions on pragmatic grounds.’ and ‘The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross-border insolvency law since the 18th century. That principle requires the English courts, so far as is consistent with justice and UK public policy, co-operate with the courts in the country of the principal liquidation to ensure that all the company’s assets are distributed to its creditors under as single system of distribution.’
Lord Scott, whilst agreeing that it is desirable as a general proposition that there should be one universally applicable scheme of distribution of the assets of an insolvent company, did not agree with Lord Hoffmann that the court had power to remit the assets to Australia other than pursuant to the statutory power.
Lord Neuberger’s speech was to the same effect in this regard.
Lord Phillips agreed that it was in accordance with international comity and the principle of universalism that the assets should be remitted to Australia pursuant to the statutory power but did not stray into the ‘controversial area’ of whether, in the absence of statutory jurisdiction, the same result could have been reached under a discretion available under the common law
Lord Hoffmann, Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
Times 09-Apr-2008, [2008] UKHL 21, [2008] 1 WLR 852, [2008] BPIR 581, [2008] Lloyd’s Rep IR 756, [2008] BCC 349, [2008] 3 All ER 869, [2008] Bus LR 905
Bailii, HL
Insolvency Act 1986 426
England and Wales
Citing:
Cited – Re Matheson Brothers Ltd 1884
The court appointed a provisional liquidator to protect the English assets of a New Zealand company which was being wound up in New Zealand. Kay J said: ‘[What] is the effect of the winding up order which it is said has been made in New Zealand? . .
Cited – Re International Tin Council ChD 1987
An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J . .
Appeal from – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Cited – Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
Cited – In the Matter of Drax Holdings Limited and in the Matter of InPower Limited ChD 17-Nov-2003
A company incorporated in Jersey comes within the Act for the purposes of the section. An English court has jurisdiction to wind up a foreign company if it has assets here or some other sufficient connection with this country. . .
Cited – Re Bank of Credit and Commerce International SA (No 10) ChD 1997
An English court has power in an ancillary liquidation (provisional or final) to authorise the English liquidators to transmit the English assets to the principal liquidators in the company’s home country. The bases for this are the principles of . .
Cited – Forster v Wilson 1843
English law regards insolvency set off as a way of achieving substantial justice between the parties. . .
Cited – Re Dallhold Estates (UK) Pty Ltd ChD 1992
The court discussed the the receipt and acceptance of a letter of request: ‘The scheme of subsection (5) appears to me to be this. The first step is to identify the matters specified in the request. Secondly, the domestic court should ask itself . .
Cited – England v Smith CA 8-Dec-1999
A liquidator of an Australian company sought damages from a ‘world-wide’ company Arthur Andersen’ and sought in particular to examine a partner in the UK. Examination was at first refused since an English court would not make a similar order. That . .
Cited – Re Paramount Airways Ltd (In Administration) CA 8-Apr-1992
It was said that there had been a transction at an undervalue within section 238. It was given effect by a transfer to a bank in Jersey, from which recovery was no sought. The bank claimed that the section did not have extra-territorial effect.
Cited – In re English, Scottish and Australian Chartered Bank 1893
Vaughan Williams J said: ‘One knows that where there is a liquidation of one concern the general principle is – ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to . .
Cited – Ayerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
Cited – Re Suidair International Airways Ltd 1951
Insolvency law may enable the court to apply a foreign law. Wynn-Parry J said: ‘It appears to me that the simple principle is that this court sits to administer the assets of the South African company which are within its [i.e. the English court’s] . .
Cited by:
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.
Insolvency, International
Leading Case
Updated: 02 November 2021; Ref: scu.266540