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The Cross-Border Insolvency Regulations 2006

Type Statutory-Instrument

Publication 2006-04-03

Last updated 2020-12-31

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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articles 32

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Made: 3rd April 2006

Coming into force: 4th April 2006

These Regulations are made in exercise of the powers conferred by section 14 of the Insolvency Act 2000 .

In accordance with section 14(6) of that Act, the Lord Chancellor and the Scottish Ministers have agreed to the making of these Regulations.

A draft of these Regulations has been laid before Parliament in accordance with section 14(5) of that Act and approved by a resolution of each House of Parliament.

Accordingly, the Secretary of State makes the following Regulations:

Citation, commencement and interpretation

1

(1) These Regulations may be cited as the Cross-Border Insolvency Regulations 2006 and shall come into force on the day after the day on which they are made.

(2) In these Regulations “the UNCITRAL Model Law” means the Model Law on cross-border insolvency as adopted by the United Nations Commission on International Trade Law on 30th May 1997.

(3) In these Regulations “overseas company” has the meaning given by section 1044 of the Companies Act 2006 and “establishment”, in relation to such a company, has the same meaning as in the Overseas Companies Regulations 2009.

UNCITRAL Model Law to have force of law

2

(1) The UNCITRAL Model Law shall have the force of law in Great Britain in the form set out in Schedule 1 to these Regulations (which contains the UNCITRAL Model Law with certain modifications to adapt it for application in Great Britain).

(2) Without prejudice to any practice of the courts as to the matters which may be considered apart from this paragraph, the following documents may be considered in ascertaining the meaning or effect of any provision of the UNCITRAL Model Law as set out in Schedule 1 to these Regulations—

(a) the UNCITRAL Model Law;

(b) any documents of the United Nations Commission on International Trade Law and its working group relating to the preparation of the UNCITRAL Model Law; and

(c) the Guide to Enactment of the UNCITRAL Model Law (UNCITRAL document A/CN.9/442) prepared at the request of the United Nations Commission on International Trade Law made in May 1997.

Modification of British insolvency law

3

(1) British insolvency law (as defined in article 2 of the UNCITRAL Model Law as set out in Schedule 1 to these Regulations) and Part 3 of the Insolvency Act 1986 shall apply with such modifications as the context requires for the purpose of giving effect to the provisions of these Regulations.

(2) In the case of any conflict between any provision of British insolvency law or of Part 3 of the Insolvency Act 1986 and the provisions of these Regulations, the latter shall prevail.

Procedural matters in England and Wales

4

Schedule 2 to these Regulations (which makes provision about procedural matters in England and Wales in connection with the application of the UNCITRAL Model Law as set out in Schedule 1 to these Regulations) shall have effect.

Procedural matters in Scotland

5

Schedule 3 to these Regulations (which makes provision about procedural matters in Scotland in connection with the application of the UNCITRAL Model Law as set out in Schedule 1 to these Regulations) shall have effect.

Notices delivered to the registrar of companies

6

Schedule 4 to these Regulations (which makes provision about notices delivered to the registrar of companies under these Regulations) shall have effect.

Co-operation between courts exercising jurisdiction in relation to cross-border insolvency

7

(1) An order made by a court in either part of Great Britain in the exercise of jurisdiction in relation to the subject matter of these Regulations shall be enforced in the other part of Great Britain as if it were made by a court exercising the corresponding jurisdiction in that other part.

(2) However, nothing in paragraph (1) requires a court in either part of Great Britain to enforce, in relation to property situated in that part, any order made by a court in the other part of Great Britain.

(3) The courts having jurisdiction in relation to the subject matter of these Regulations in either part of Great Britain shall assist the courts having the corresponding jurisdiction in the other part of Great Britain.

Disapplication of section 388 of the Insolvency Act 1986

8

Nothing in section 388 of the Insolvency Act 1986 applies to anything done by a foreign representative—

(a) under or by virtue of these Regulations;

(b) in relation to relief granted or cooperation or coordination provided under these Regulations.

SCHEDULE 1 — UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY

CHAPTER I — General Provisions

Article 1. Scope of Application

1

This Law applies where—

(a) assistance is sought in Great Britain by a foreign court or a foreign representative in connection with a foreign proceeding; or

(b) assistance is sought in a foreign State in connection with a proceeding under British insolvency law; or

(c) a foreign proceeding and a proceeding under British insolvency law in respect of the same debtor are taking place concurrently; or

(d) creditors or other interested persons in a foreign State have an interest in requesting the commencement of, or participating in, a proceeding under British insolvency law.

2

This Law does not apply to a proceeding concerning—

(a) a company holding an appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (water and sewage undertakers) or a qualifying water supply licensee within the meaning of section 23(6) of that Act (meaning and effect of special administration order);

(b) Scottish Water established under section 20 of the Water Industry (Scotland) Act 2002 (Scottish Water) ;

(c) a protected railway company within the meaning of section 59 of the Railways Act 1993 (railway administration order) (including that section as it has effect by virtue of section 19 of the Channel Tunnel Rail Link Act 1996 (administration));

(d) a licence company within the meaning of section 26 of the Transport Act 2000 (air traffic services);

(e) a public private partnership company within the meaning of section 210 of the Greater London Authority Act 1999 (public-private partnership agreement);

(f) a protected energy company within the meaning of section 154(5) of the Energy Act 2004 (energy administration orders);

(g) a building society within the meaning of section 119 of the Building Societies Act 1986 (interpretation);

(h) a UK credit institution or an EEA credit institution or any branch of either such institution as those expressions are defined by regulation 2 of the Credit Institutions (Reorganisation and Winding Up) Regulations 2004 (interpretation);

(i) a third country credit institution within the meaning of regulation 36 of the Credit Institutions (Reorganisation and Winding Up) Regulations 2004 (interpretation of this Part);

(j) a person who has permission under or by virtue of Parts 4 or 19 of the Financial Services and Markets Act 2000 to effect or carry out contracts of insurance;

(k) an EEA insurer within the meaning of regulation 2 of the Insurers (Reorganisation and Winding Up) Regulations 2004 (interpretation);

(l) a person (other than one included in paragraph 2(j)) pursuing the activity of reinsurance who has received authorisation for that activity from a competent authority within an EEA State; or

(m) any of the Concessionaires within the meaning of section 1 of the Channel Tunnel Act 1987 .

3

In paragraph 2 of this article—

(a) in sub-paragraph (j) the reference to “contracts of insurance” must be construed in accordance with—

(i) section 22 of the Financial Services and Markets Act 2000 (classes of regulated activity and categories of investment);

(ii) any relevant order under that section; and

(iii) Schedule 2 to that Act (regulated activities);

(b) in sub-paragraph (1) “EEA State” means a State ... which is a contracting party to the agreement on the European Economic Area signed at Oporto on 2 May 1992.

4

The court shall not grant any relief, or modify any relief already granted, or provide any co-operation or coordination, under or by virtue of any of the provisions of this Law if and to the extent that such relief or modified relief or cooperation or coordination would—

(a) be prohibited under or by virtue of—

(i) Part 7 of the Companies Act 1989 ;

(ii) Part 3 of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 ; or

(iii) Part 3 of the Financial Collateral Arrangements (No. 2) Regulations 2003 ;

in the case of a proceeding under British insolvency law; or

(b) interfere with or be inconsistent with any rights of a collateral taker under Part 4 of the Financial Collateral Arrangements (No. 2) Regulations 2003 which could be exercised in the case of such a proceeding.

5

Where a foreign proceeding regarding a debtor who is an insured in accordance with the provisions of the Third Parties (Rights against Insurers) Act 2010 is recognised under this Law, any stay and suspension referred to in article 20(1) and any relief granted by the court under article 19 or 21 shall not apply to or affect—

(a) any transfer of rights of the debtor under that Act; or

(b) any claim, action, cause or proceeding by a third party against an insurer under or in respect of rights of the debtor transferred under that Act.

6

Any suspension under this Law of the right to transfer, encumber or otherwise dispose of any of the debtor's assets—

(a) is subject to section 26 of the Land Registration Act 2002 where owner's powers are exercised in relation to a registered estate or registered charge;

(b) is subject to section 52 of the Land Registration Act 2002, where the powers referred to in that section are exercised by the proprietor of a registered charge; and

(c) in any other case, shall not bind a purchaser of a legal estate in good faith for money or money's worth unless the purchaser has express notice of the suspension.

7

In paragraph 6—

(a) “owner's powers” means the powers described in section 23 of the Land Registration Act 2002 and “registered charge” and “registered estate” have the same meaning as in section 132(1) of that Act; and

(b) “legal estate” and “purchaser” have the same meaning as in section 17 of the Land Charges Act 1972 .

Article 2. Definitions

For the purposes of this Law—

(a) “British insolvency law” means—

(i) in relation to England and Wales, provision extending to England and Wales and made by or under the Insolvency Act 1986²³ (with the exception of Part 3 of that Act) or by or under that Act as extended or applied by or under any other enactment (excluding these Regulations); and

(ii) in relation to Scotland, provision extending to Scotland and made by or under the Insolvency Act 1986 (with the exception of Part 3 of that Act), the Bankruptcy (Scotland) Act 1985²⁴ or by or under those Acts as extended or applied by or under any other enactment (excluding these Regulations);

(b) “British insolvency officeholder” means—

(i) the official receiver within the meaning of section 399 of the Insolvency Act 1986²⁵ when acting as liquidator, provisional liquidator, trustee, interim receiver or nominee or supervisor of a voluntary arrangement;

(ii) a person acting as an insolvency practitioner within the meaning of section 388²⁶ of that Act but shall not include a person acting as an administrative receiver; and

(iii) the Accountant in Bankruptcy within the meaning of section 1 of the Bankruptcy (Scotland) Act 1985²⁷ when acting as interim or permanent trustee;

(c) “the court” except as otherwise provided in articles 14(4) and 23(6)(b), means in relation to any matter the court which in accordance with the provisions of article 4 of this Law has jurisdiction in relation to that matter;

(d) “the EC Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of 29 May 2000 on Insolvency Proceedings²⁸;

(e) “establishment” means any place of operations where the debtor carries out a non-transitory economic activity with human means and assets or services;

(f) “foreign court” means a judicial or other authority competent to control or supervise a foreign proceeding;

(g) “foreign main proceeding” means a foreign proceeding taking place in the State where the debtor has the centre of its main interests;

(h) “foreign non-main proceeding” means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of sub-paragraph (e) of this article;

(i) “foreign proceeding” means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganisation or liquidation;

(j) “foreign representative” means a person or body, including one appointed on an interim basis, authorised in a foreign proceeding to administer the reorganisation or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding;

(k) “hire-purchase agreement” includes a conditional sale agreement, a chattel leasing agreement and a retention of title agreement;

(l) “section 426 request” means a request for assistance in accordance with section 426 of the Insolvency Act 1986²⁹ made to a court in any part of the United Kingdom;

(m) “secured creditor” in relation to a debtor, means a creditor of the debtor who holds in respect of his debt a security over property of the debtor;

(n) “security” means—

(i) in relation to England and Wales, any mortgage, charge, lien or other security; and

(ii) in relation to Scotland, any security (whether heritable or moveable), any floating charge and any right of lien or preference and any right of retention (other than a right of compensation or set off);

(o) in the application of Articles 20 and 23 to Scotland, “an individual” means any debtor within the meaning of the Bankruptcy (Scotland) Act 1985;

(p) in the application of this Law to Scotland, references howsoever expressed to—

(i) “filing” an application or claim are to be construed as references to lodging an application or submitting a claim respectively;

(ii) “relief” and “standing” are to be construed as references to “remedy” and “title and interest” respectively; and

(iii) a “stay” are to be construed as references to restraint, except in relation to continuation of actions or proceedings when they shall be construed as a reference to sist; and

(q) references to the law of Great Britain include a reference to the law of either part of Great Britain (including its rules of private international law).

Article 3. International obligations of Great Britain under the EU Insolvency Regulation

To the extent that this Law conflicts with an obligation of the United Kingdom under the EC Insolvency Regulation, the requirements of the EC Insolvency Regulation prevail.

Article 4. Competent court

1

The functions referred to in this Law relating to recognition of foreign proceedings and cooperation with foreign courts shall be performed by the High Court and assigned to the Chancery Division, as regards England and Wales and the Court of Session as regards Scotland.

2

Subject to paragraph 1 of this article, the court in either part of Great Britain shall have jurisdiction in relation to the functions referred to in that paragraph if—

(a) the debtor has—

(i) a place of business; or

(ii) in the case of an individual, a place of residence; or

(iii) assets,

situated in that part of Great Britain; or

(b) the court in that part of Great Britain considers for any other reason that it is the appropriate forum to consider the question or provide the assistance requested.

3

In considering whether it is the appropriate forum to hear an application for recognition of a foreign proceeding in relation to a debtor, the court shall take into account the location of any court in which a proceeding under British insolvency law is taking place in relation to the debtor and the likely location of any future proceedings under British insolvency law in relation to the debtor.

Article 5. Authorisation of British insolvency officeholders to act in a foreign State

A British insolvency officeholder is authorised to act in a foreign State on behalf of a proceeding under British insolvency law, as permitted by the applicable foreign law.

Article 6. Public policy exception

Nothing in this Law prevents the court from refusing to take an action governed by this Law if the action would be manifestly contrary to the public policy of Great Britain or any part of it.

Article 7. Additional assistance under other laws

Nothing in this Law limits the power of a court or a British insolvency officeholder to provide additional assistance to a foreign representative under other laws of Great Britain.

Article 8. Interpretation

In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

CHAPTER II — Access of Foreign Representatives and Creditors to Courts in Great Britain

Article 9. Right of direct access

A foreign representative is entitled to apply directly to a court in Great Britain.

Article 10. Limited jurisdiction

The sole fact that an application pursuant to this Law is made to a court in Great Britain by a foreign representative does not subject the foreign representative or the foreign assets and affairs of the debtor to the jurisdiction of the courts of Great Britain or any part of it for any purpose other than the application.

Article 11. Application by a foreign representative to commence a proceeding under British insolvency law

A foreign representative appointed in a foreign main proceeding or foreign non-main proceeding is entitled to apply to commence a proceeding under British insolvency law if the conditions for commencing such a proceeding are otherwise met.

Article 12. Participation of a foreign representative in a proceeding under British insolvency law

Upon recognition of a foreign proceeding, the foreign representative is entitled to participate in a proceeding regarding the debtor under British insolvency law.

Article 13. Access of foreign creditors to a proceeding under British insolvency law

1

Subject to paragraph 2 of this article, foreign creditors have the same rights regarding the commencement of, and participation in, a proceeding under British insolvency law as creditors in Great Britain.

2

Paragraph 1 of this article does not affect the ranking of claims in a proceeding under British insolvency law, except that the claim of a foreign creditor shall not be given a lower priority than that of general unsecured claims solely because the holder of such a claim is a foreign creditor.

3

A claim may not be challenged solely on the grounds that it is a claim by a foreign tax or social security authority but such a claim may be challenged—

(a) on the ground that it is in whole or in part a penalty, or

(b) on any other ground that a claim might be rejected in a proceeding under British insolvency law.

Article 14. Notification to foreign creditors of a proceeding under British insolvency law

1

Whenever under British insolvency law notification is to be given to creditors in Great Britain, such notification shall also be given to the known creditors that do not have addresses in Great Britain. The court may order that appropriate steps be taken with a view to notifying any creditor whose address is not yet known.

2

Such notification shall be made to the foreign creditors individually, unless—

(a) the court considers that under the circumstances some other form of notification would be more appropriate; or

(b) the notification to creditors in Great Britain is to be by advertisement only, in which case the notification to the known foreign creditors may be by advertisement in such foreign newspapers as the British insolvency officeholder considers most appropriate for ensuring that the content of the notification comes to the notice of the known foreign creditors.

3

When notification of a right to file a claim is to be given to foreign creditors, the notification shall—

(a) indicate a reasonable time period for filing claims and specify the place for their filing;

(b) indicate whether secured creditors need to file their secured claims; and

(c) contain any other information required to be included in such a notification to creditors pursuant to the law of Great Britain and the orders of the court.

4

In this article “the court” means the court which has jurisdiction in relation to the particular proceeding under British insolvency law under which notification is to be given to creditors.

CHAPTER III — Recognition of a Foreign Proceeding and Relief

Article 15. Application for recognition of a foreign proceeding

1

A foreign representative may apply to the court for recognition of the foreign proceeding in which the foreign representative has been appointed.

2

An application for recognition shall be accompanied by—

(a) a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative; or

(b) a certificate from the foreign court affirming the existence of the foreign proceeding and of the appointment of the foreign representative; or

(c) in the absence of evidence referred to in sub-paragraphs (a) and (b), any other evidence acceptable to the court of the existence of the foreign proceeding and of the appointment of the foreign representative.

3

An application for recognition shall also be accompanied by a statement identifying all foreign proceedings, proceedings under British insolvency law and section 426 requests in respect of the debtor that are known to the foreign representative.

4

The foreign representative shall provide the court with a translation into English of documents supplied in support of the application for recognition.

Article 16. Presumptions concerning recognition

1

If the decision or certificate referred to in paragraph 2 of article 15 indicates that the foreign proceeding is a proceeding within the meaning of sub-paragraph (i) of article 2 and that the foreign representative is a person or body within the meaning of sub-paragraph (j) of article 2, the court is entitled to so presume.

2

The court is entitled to presume that documents submitted in support of the application for recognition are authentic, whether or not they have been legalised.

3

Subject to paragraph 2A, in the absence of proof to the contrary, the debtor's registered office, or habitual residence in the case of an individual, is presumed to be the centre of the debtor's main interests.

Article 17. Decision to recognise a foreign proceeding

1

Subject to article 6, a foreign proceeding shall be recognised if—

(a) it is a foreign proceeding within the meaning of sub-paragraph (i) of article 2;

(b) the foreign representative applying for recognition is a person or body within the meaning of sub-paragraph (j) of article 2;

(d) the application has been submitted to the court referred to in article 4.

2

The foreign proceeding shall be recognised—

(a) as a foreign main proceeding if it is taking place in the State where the debtor has the centre of its main interests; or

(b) as a foreign non-main proceeding if the debtor has an establishment within the meaning of sub-paragraph (e) of article 2 in the foreign State.

3

An application for recognition of a foreign proceeding shall be decided upon at the earliest possible time.

4

The provisions of articles 15 to 16, this article and article 18 do not prevent modification or termination of recognition if it is shown that the grounds for granting it were fully or partially lacking or have fully or partially ceased to exist and in such a case, the court may, on the application of the foreign representative or a person affected by recognition, or of its own motion, modify or terminate recognition, either altogether or for a limited time, on such terms and conditions as the court thinks fit.

Article 18. Subsequent information

From the time of filing the application for recognition of the foreign proceeding, the foreign representative shall inform the court promptly of—

(a) any substantial change in the status of the recognised foreign proceeding or the status of the foreign representative’s appointment; and

(b) any other foreign proceeding, proceeding under British insolvency law or section 426 request regarding the same debtor that becomes known to the foreign representative.

Article 19. Relief that may be granted upon application for recognition of a foreign proceeding

1

From the time of filing an application for recognition until the application is decided upon, the court may, at the request of the foreign representative, where relief is urgently needed to protect the assets of the debtor or the interests of the creditors, grant relief of a provisional nature, including—

(a) staying execution against the debtor's assets;

(b) entrusting the administration or realisation of all or part of the debtor's assets located in Great Britain to the foreign representative or another person designated by the court, in order to protect and preserve the value of assets that, by their nature or because of other circumstances, are perishable, susceptible to devaluation or otherwise in jeopardy; and

2

Unless extended under paragraph 1(f) of article 21, the relief granted under this article terminates when the application for recognition is decided upon.

3

The court may refuse to grant relief under this article if such relief would interfere with the administration of a foreign main proceeding.

Article 20. Effects of recognition of a foreign main proceeding

1

Upon recognition of a foreign proceeding that is a foreign main proceeding, subject to paragraph 2 of this article—

(a) commencement or continuation of individual actions or individual proceedings concerning the debtor's assets, rights, obligations or liabilities is stayed;

(b) execution against the debtor's assets is stayed; and

2

The stay and suspension referred to in paragraph 1 of this article shall be—

(a) the same in scope and effect as if the debtor, in the case of an individual, had been adjudged bankrupt under the Insolvency Act 1986 or had his estate sequestrated under the Bankruptcy (Scotland) Act 1985 , or, in the case of a debtor other than an individual, had been made the subject of a winding-up order under the Insolvency Act 1986; and

(b) subject to the same powers of the court and the same prohibitions, limitations, exceptions and conditions as would apply under the law of Great Britain in such a case,

and the provisions of paragraph 1 of this article shall be interpreted accordingly.

3

Without prejudice to paragraph 2 of this article, the stay and suspension referred to in paragraph 1 of this article, in particular, does not affect any right—

(a) to take any steps to enforce security over the debtor's property;

(b) to take any steps to repossess goods in the debtor's possession under a hire-purchase agreement;

(d) of a creditor to set off its claim against a claim of the debtor,

being a right which would have been exercisable if the debtor, in the case of an individual, had been adjudged bankrupt under the Insolvency Act 1986 or had his estate sequestrated under the Bankruptcy (Scotland) Act 1985, or, in the case of a debtor other than an individual, had been made the subject of a winding-up order under the Insolvency Act 1986.

4

Paragraph 1(a) of this article does not affect the right to—

(a) commence individual actions or proceedings to the extent necessary to preserve a claim against the debtor; or

(b) commence or continue any criminal proceedings or any action or proceedings by a person or body having regulatory, supervisory or investigative functions of a public nature, being an action or proceedings brought in the exercise of those functions.

5

Paragraph 1 of this article does not affect the right to request or otherwise initiate the commencement of a proceeding under British insolvency law or the right to file claims in such a proceeding.

6

In addition to and without prejudice to any powers of the court under or by virtue of paragraph 2 of this article, the court may, on the application of the foreign representative or a person affected by the stay and suspension referred to in paragraph 1 of this article, or of its own motion, modify or terminate such stay and suspension or any part of it, either altogether or for a limited time, on such terms and conditions as the court thinks fit.

Article 21. Relief that may be granted upon recognition of a foreign proceeding

1

Upon recognition of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including—

(a) staying the commencement or continuation of individual actions or individual proceedings concerning the debtor's assets, rights, obligations or liabilities, to the extent they have not been stayed under paragraph 1(a) of article 20;

(b) staying execution against the debtor's assets to the extent it has not been stayed under paragraph 1(b) of article 20;

(c) suspending the right to transfer, encumber or otherwise dispose of any assets of the debtor to the extent this right has not been suspended under paragraph 1(c) of article 20;

(d) providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor's assets, affairs, rights, obligations or liabilities;

(e) entrusting the administration or realisation of all or part of the debtor's assets located in Great Britain to the foreign representative or another person designated by the court;

(f) extending relief granted under paragraph 1 of article 19; and

(g) granting any additional relief that may be available to a British insolvency officeholder under the law of Great Britain, including any relief provided under paragraph 43 of Schedule B1 to the Insolvency Act 1986 .

2

Upon recognition of a foreign proceeding, whether main or non-main, the court may, at the request of the foreign representative, entrust the distribution of all or part of the debtor's assets located in Great Britain to the foreign representative or another person designated by the court, provided that the court is satisfied that the interests of creditors in Great Britain are adequately protected.

3

In granting relief under this article to a representative of a foreign non-main proceeding, the court must be satisfied that the relief relates to assets that, under the law of Great Britain, should be administered in the foreign non-main proceeding or concerns information required in that proceeding.

4

No stay under paragraph 1(a) of this article shall affect the right to commence or continue any criminal proceedings or any action or proceedings by a person or body having regulatory, supervisory or investigative functions of a public nature, being an action or proceedings brought in the exercise of those functions.

Article 22. Protection of creditors and other interested persons

1

In granting or denying relief under article 19 or 21, or in modifying or terminating relief under paragraph 3 of this article or paragraph 6 of article 20, the court must be satisfied that the interests of the creditors (including any secured creditors or parties to hire-purchase agreements) and other interested persons, including if appropriate the debtor, are adequately protected.

2

The court may subject relief granted under article 19 or 21 to conditions it considers appropriate, including the provision by the foreign representative of security or caution for the proper performance of his functions.

3

The court may, at the request of the foreign representative or a person affected by relief granted under article 19 or 21, or of its own motion, modify or terminate such relief.

Article 23. Actions to avoid acts detrimental to creditors

1

Subject to paragraphs 6 and 9 of this article, upon recognition of a foreign proceeding, the foreign representative has standing to make an application to the court for an order under or in connection with sections 238, 239, 242, 243, 244, 245, 339, 340, 342A, 343, and 423 of the Insolvency Act 1986 and sections 34, 35, 36, 36A and 61 of the Bankruptcy (Scotland) Act 1985 .

2

Where the foreign representative makes such an application (“an article 23 application”), the sections referred to in paragraph 1 of this article and sections 240, 241, 341, 342, 342B to 342F, 424 and 425 of the Insolvency Act 1986 and sections 36B and 36C of the Bankruptcy (Scotland) Act 1985 shall apply—

(a) whether or not the debtor, in the case of an individual, has been adjudged bankrupt or had his estate sequestrated, or, in the case of a debtor other than an individual, is being wound up or is in administration, under British insolvency law; and

(b) with the modifications set out in paragraph 3 of this article.

3

The modifications referred to in paragraph 2 of this article are as follows—

(a) for the purposes of sections 241(2A)(a) and 342(2A)(a) of the Insolvency Act 1986, a person has notice of the relevant proceedings if he has notice of the opening of the relevant foreign proceeding;

(b) for the purposes of sections 240(1) and 245(3) of that Act, the onset of insolvency shall be the date of the opening of the relevant foreign proceeding;

(c) the periods referred to in sections 244(2), 341(1)(a) to (c) and 343(2) of that Act shall be periods ending with the date of the opening of the relevant foreign proceeding;

(d) for the purposes of sections 242(3)(a), (3)(b) and 243(1) of that Act, the date on which the winding up of the company commences or it enters administration shall be the date of the opening of the relevant foreign proceeding; and

(e) for the purposes of sections 34(3)(a), (3)(b), 35(1)(c), 36(1)(a) and (1)(b) and 61(2) of the Bankruptcy (Scotland) Act 1985, the date of sequestration or granting of the trust deed shall be the date of the opening of the relevant foreign proceeding.

4

For the purposes of paragraph 3 of this article, the date of the opening of the foreign proceeding shall be determined in accordance with the law of the State in which the foreign proceeding is taking place, including any rule of law by virtue of which the foreign proceeding is deemed to have opened at an earlier time.

5

When the foreign proceeding is a foreign non-main proceeding, the court must be satisfied that the article 23 application relates to assets that, under the law of Great Britain, should be administered in the foreign non-main proceeding.

6

At any time when a proceeding under British insolvency law is taking place regarding the debtor—

(a) the foreign representative shall not make an article 23 application except with the permission of—

(i) in the case of a proceeding under British insolvency law taking place in England and Wales, the High Court; or

(ii) in the case of a proceeding under British insolvency law taking place in Scotland, the Court of Session; and

(b) references to “the court” in paragraphs 1, 5 and 7 of this article are references to the court in which that proceeding is taking place.

7

On making an order on an article 23 application, the court may give such directions regarding the distribution of any proceeds of the claim by the foreign representative, as it thinks fit to ensure that the interests of creditors in Great Britain are adequately protected.

8

Nothing in this article affects the right of a British insolvency officeholder to make an application under or in connection with any of the provisions referred to in paragraph 1 of this article.

9

Nothing in paragraph 1 of this article shall apply in respect of any preference given, floating charge created, alienation, assignment or relevant contributions (within the meaning of section 342A(5) of the Insolvency Act 1986) made or other transaction entered into before the date on which this Law comes into force.

Article 24. Intervention by a foreign representative in proceedings in Great Britain

Upon recognition of a foreign proceeding, the foreign representative may, provided the requirements of the law of Great Britain are met, intervene in any proceedings in which the debtor is a party.

CHAPTER IV — Cooperation with Foreign Courts and Foreign Representatives

Article 25. Cooperation and direct communication between a court of Great Britain and foreign courts or foreign representatives

1

In matters referred to in paragraph 1 of article 1, the court may cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a British insolvency officeholder.

2

The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives.

Article 26. Cooperation and direct communication between the British insolvency officeholder and foreign courts or foreign representatives

1

In matters referred to in paragraph 1 of article 1, a British insolvency officeholder shall to the extent consistent with his other duties under the law of Great Britain, in the exercise of his functions and subject to the supervision of the court, cooperate to the maximum extent possible with foreign courts or foreign representatives.

2

The British insolvency officeholder is entitled, in the exercise of his functions and subject to the supervision of the court, to communicate directly with foreign courts or foreign representatives.

Article 27. Forms of cooperation

Cooperation referred to in articles 25 and 26 may be implemented by any appropriate means, including—

(a) appointment of a person to act at the direction of the court;

(b) communication of information by any means considered appropriate by the court;

(d) approval or implementation by courts of agreements concerning the coordination of proceedings;

(e) coordination of concurrent proceedings regarding the same debtor.

CHAPTER V — Concurrent Proceedings

Article 28. Commencement of a proceeding under British insolvency law after recognition of a foreign main proceeding

After recognition of a foreign main proceeding, the effects of a proceeding under British insolvency law in relation to the same debtor shall, insofar as the assets of that debtor are concerned, be restricted to assets that are located in Great Britain and, to the extent necessary to implement cooperation and coordination under articles 25, 26 and 27, to other assets of the debtor that, under the law of Great Britain, should be administered in that proceeding.

Article 29. Coordination of a proceeding under British insolvency law and a foreign proceeding

Where a foreign proceeding and a proceeding under British insolvency law are taking place concurrently regarding the same debtor, the court may seek cooperation and coordination under articles 25, 26 and 27, and the following shall apply—

(a) when the proceeding in Great Britain is taking place at the time the application for recognition of the foreign proceeding is filed—

(i) any relief granted under article 19 or 21 must be consistent with the proceeding in Great Britain; and

(ii) if the foreign proceeding is recognised in Great Britain as a foreign main proceeding, article 20 does not apply;

(b) when the proceeding in Great Britain commences after the filing of the application for recognition of the foreign proceeding—

(i) any relief in effect under article 19 or 21 shall be reviewed by the court and shall be modified or terminated if inconsistent with the proceeding in Great Britain;

(ii) if the foreign proceeding is a foreign main proceeding, the stay and suspension referred to in paragraph 1 of article 20 shall be modified or terminated pursuant to paragraph 6 of article 20, if inconsistent with the proceeding in Great Britain; and

(iii) any proceedings brought by the foreign representative by virtue of paragraph 1 of article 23 before the proceeding in Great Britain commenced shall be reviewed by the court and the court may give such directions as it thinks fit regarding the continuance of those proceedings; and

(c) in granting, extending or modifying relief granted to a representative of a foreign non-main proceeding, the court must be satisfied that the relief relates to assets that, under the law of Great Britain, should be administered in the foreign non-main proceeding or concerns information required in that proceeding.

Article 30. Coordination of more than one foreign proceeding

In matters referred to in paragraph 1 of article 1, in respect of more than one foreign proceeding regarding the same debtor, the court may seek cooperation and coordination under articles 25, 26 and 27, and the following shall apply—

(a) any relief granted under article 19 or 21 to a representative of a foreign non-main proceeding after recognition of a foreign main proceeding must be consistent with the foreign main proceeding;

(b) if a foreign main proceeding is recognised after the filing of an application for recognition of a foreign non-main proceeding, any relief in effect under article 19 or 21 shall be reviewed by the court and shall be modified or terminated if inconsistent with the foreign main proceeding; and

(c) if, after recognition of a foreign non-main proceeding, another foreign non-main proceeding is recognised, the court shall grant, modify or terminate relief for the purpose of facilitating coordination of the proceedings.

Article 31. Presumption of insolvency based on recognition of a foreign main proceeding

In the absence of evidence to the contrary, recognition of a foreign main proceeding is, for the purpose of commencing a proceeding under British insolvency law, proof that the debtor is unable to pay its debts or, in relation to Scotland, is apparently insolvent within the meaning given to those expressions under British insolvency law.

Article 32. Rule of payment in concurrent proceedings

Without prejudice to secured claims or rights in rem, a creditor who has received part payment in respect of its claim in a proceeding pursuant to a law relating to insolvency in a foreign State may not receive a payment for the same claim in a proceeding under British insolvency law regarding the same debtor, so long as the payment to the other creditors of the same class is proportionately less than the payment the creditor has already received.

SCHEDULE 2 — PROCEDURAL MATTERS IN ENGLAND AND WALES

PART 1 — Introductory Provisions

Interpretation

1

(1) In this Schedule—

“the 1986 Act” means the Insolvency Act 1986 ;

“article 21 relief application” means an application to the court by a foreign representative under article 21(1) or (2) of the Model Law for relief;

“business day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under or by virtue of the Banking and Financial Dealings Act 1971 ;

“CPR” means the Civil Procedure Rules 1998 and CPR followed by a Part or rule by number means the Part or rule with that number in those Rules;

“enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 2003 ;

file in court and “file with the court” means deliver to the court for filing;

“the Gazette” means the London Gazette;

“interim relief application” means an application to the court by a foreign representative under article 19 of the Model Law for interim relief;

“the Model Law” means the UNCITRAL Model Law as set out in Schedule 1 to these Regulations;

“modification or termination order” means an order by the court pursuant to its powers under the Model Law modifying or terminating recognition of a foreign proceeding, the stay and suspension referred to in article 20(1) or any part of it or any relief granted under article 19 or 21 of the Model Law;

“originating application” means an application to the court which is not an application in pending proceedings before the court;

“ordinary application” means any application to the court other than an originating application;

“practice direction” means a direction as to the practice and procedure of any court within the scope of the CPR;

“recognition application” means an application to the court by a foreign representative in accordance with article 15 of the Model Law for an order recognising the foreign proceeding in which he has been appointed;

“recognition order” means an order by the court recognising a proceeding the subject of a recognition application as a foreign main proceeding or foreign non-main proceeding, as appropriate;

“relevant company” means a company that is— registered under the Companies Act 2006,subject to a requirement imposed by regulations under section 1043 of that Act 2006 (unregistered UK companies) to deliver any documents to the registrar of companies, orsubject to a requirement imposed by regulations under section 1046 of that Act (overseas companies) to deliver any documents to the registrar of companies;

“review application” means an application to the court for a modification or termination order;

“the Rules” means the Insolvency (England and Wales) Rules 2016 and Rule followed by a number means the rule with that number in those Rules;

(2) Expressions defined in the Model Law have the same meaning when used in this Schedule.

(3) In proceedings under these Regulations, “Registrar” means—

(a) an Insolvency and Companies Court Judge; and

(b) where the proceedings are in a district registry, the district judge.

(4) References to the “venue” for any proceedings or attendance before the court, are to the time, date and place for the proceedings or attendance.

(5) References in this Schedule to ex parte hearings shall be construed as references to hearings without notice being served on any other party, and references to applications made ex parte as references to applications made without notice being served on any other party; and other references which include the expression “ex parte” shall be similarly construed.

(6) References in this Schedule to a debtor who is of interest to the Financial Conduct Authority are references to a debtor who—

(a) is, or has been, an authorised person within the meaning of the Financial Services and Markets Act 2000;

(b) is, or has been, an appointed representative within the meaning of section 39 of the Financial Services and Markets Act 2000; or

(6A) References in this Schedule to a debtor who is of interest to the Prudential Regulation Authority are references to a debtor who—

(a) is, or has been, a PRA-authorised person within the meaning of the Financial Services and Markets Act 2000; or

(b) is carrying on, or has carried on, a PRA-regulated activity within the meaning of the Financial Services and Markets Act 2000 in contravention of the general prohibition.

(7) In sub-paragraphs (6) and (6A) “the general prohibition” has the meaning given by section 19 of the Financial Services and Markets Act 2000 and the reference to a “regulated activity” must be construed in accordance with—

(a) section 22 of that Act (classes of regulated activity and categories of investment);

(b) any relevant order under that section; and

(8) References in this Schedule to a numbered form are to the form that bears that number in Schedule 5.

PART 2 — Applications to Court for Recognition of Foreign Proceedings

Affidavit in support of recognition application

2

A recognition application shall be in Form ML 1 and shall be supported by an affidavit sworn by the foreign representative complying with paragraph 4.

Form and content of application

3

The application shall state the following matters—

(a) the name of the applicant and his address for service within England and Wales;

(b) the name of the debtor in respect of which the foreign proceeding is taking place;

(c) the name or names in which the debtor carries on business in the country where the foreign proceeding is taking place and in this country, if other than the name given under sub-paragraph (b);

(d) the principal or last known place of business of the debtor in Great Britain (if any) and, in the case of an individual, his usual or last known place of residence in Great Britain (if any);

(e) any registered number allocated to the debtor under the Companies Act 2006;

(f) brief particulars of the foreign proceeding in respect of which recognition is applied for, including the country in which it is taking place and the nature of the proceeding;

(g) that the foreign proceeding is a proceeding within the meaning of article 2(i) of the Model Law;

(h) that the applicant is a foreign representative within the meaning of article 2(j) of the Model Law;

(i) the address of the debtor's centre of main interests and, if different, the address of its registered office or habitual residence, as appropriate; and

(j) if the debtor does not have its centre of main interests in the country where the foreign proceeding is taking place, whether the debtor has an establishment within the meaning of article 2(e) of the Model Law in that country, and if so, its address.

Contents of affidavit in support

4

(1) There shall be attached to the application an affidavit in support which shall contain or have exhibited to it—

(a) the evidence and statement required under article 15(2) and (3) respectively of the Model Law;

(b) any other evidence which in the opinion of the applicant will assist the court in deciding whether the proceeding the subject of the application is a foreign proceeding within the meaning of article 2(i) of the Model Law and whether the applicant is a foreign representative within the meaning of article 2(j) of the Model Law;

(c) evidence that the debtor has its centre of main interests or an establishment, as the case may be, within the country where the foreign proceeding is taking place; and

(d) any other matters which in the opinion of the applicant will assist the court in deciding whether to make a recognition order.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The affidavit shall also have exhibited to it the translations required under article 15(4) of the Model Law and a translation in English of any other document exhibited to the affidavit which is in a language other than English.

(4) All translations referred to in sub-paragraph (3) must be certified by the translator as a correct translation.

The hearing and powers of court

5

(1) On hearing a recognition application the court may in addition to its powers under the Model Law to make a recognition order—

(a) dismiss the application;

(b) adjourn the hearing conditionally or unconditionally;

(2) If the court makes a recognition order, it shall be in Form ML 2.

Notification of subsequent information

6

(1) The foreign representative shall set out any subsequent information required to be given to the court under article 18 of the Model Law in a statement which he shall attach to Form ML 3 and file with the court.

(2) The statement shall include—

(a) details of the information required to be given under article 18 of the Model Law; ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The foreign representative shall send a copy of the Form ML 3 and attached statement filed with the court to the following—

(a) the debtor; and

(b) those persons referred to in paragraph 26(3).

PART 3 — Applications for Relief under the Model Law

Application for interim relief—affidavit in support

7

(1) An interim relief application must be supported by an affidavit sworn by the foreign representative stating—

(a) the grounds on which it is proposed that the interim relief applied for should be granted;

(b) details of any proceeding under British insolvency law taking place in relation to the debtor;

(c) whether, to the foreign representative's knowledge, an administrative receiver or receiver or manager of the debtor's property is acting in relation to the debtor;

(d) an estimate of the value of the assets of the debtor in England and Wales in respect of which relief is applied for;

(e) whether, to the best of the knowledge and belief of the foreign representative, the interests of the debtor's creditors (including any secured creditors or parties to hire-purchase agreements) and any other interested parties, including if appropriate the debtor, will be adequately protected;

(f) whether, to the best of the foreign representative's knowledge and belief, the grant of any of the relief applied for would interfere with the administration of a foreign main proceeding; and

(g) all other matters that in the opinion of the foreign representative will assist the court in deciding whether or not it is appropriate to grant the relief applied for.

Service of interim relief application not required

8

Unless the court otherwise directs, it shall not be necessary to serve the interim relief application on, or give notice of it to, any person.

The hearing and powers of court

9

On hearing an interim relief application the court may in addition to its powers under the Model Law to make an order granting interim relief under article 19 of the Model Law—

(a) dismiss the application;

(b) adjourn the hearing conditionally or unconditionally;

Application for relief under article 21 of the Model Law—affidavit in support

10

An article 21 relief application must be supported by an affidavit sworn by the foreign representative stating—

(a) the grounds on which it is proposed that the relief applied for should be granted;

(b) an estimate of the value of the assets of the debtor in England and Wales in respect of which relief is applied for;

(c) in the case of an application by a foreign representative who is or believes that he is a representative of a foreign non-main proceeding, the reasons why the applicant believes that the relief relates to assets that, under the law of Great Britain, should be administered in the foreign non-main proceeding or concerns information required in that proceeding;

(d) whether, to the best of the knowledge and belief of the foreign representative, the interests of the debtor's creditors (including any secured creditors or parties to hire-purchase agreements) and any other interested parties, including if appropriate the debtor, will be adequately protected; and

(e) all other matters that in the opinion of the foreign representative will assist the court in deciding whether or not it is appropriate to grant the relief applied for.

The hearing and powers of court

11

On hearing an article 21 relief application the court may in addition to its powers under the Model Law to make an order granting relief under article 21 of the Model Law—

(a) dismiss the application;

(b) adjourn the hearing conditionally or unconditionally;

PART 4 — Replacement of Foreign Representative

Application for confirmation of status of replacement foreign representative

12

(1) This paragraph applies where following the making of a recognition order the foreign representative dies or for any other reason ceases to be the foreign representative in the foreign proceeding in relation to the debtor.

(2) In this paragraph “the former foreign representative” shall mean the foreign representative referred to in sub-paragraph (1).

(3) If a person has succeeded the former foreign representative or is otherwise holding office as foreign representative in the foreign proceeding in relation to the debtor, that person may apply to the court for an order confirming his status as replacement foreign representative for the purpose of proceedings under these Regulations.

Contents of application and affidavit in support

13

(1) An application under paragraph 12(3) shall in addition to the matters required to be stated by paragraph 19(2) state the following matters—

(a) the name of the replacement foreign representative and his address for service within England and Wales;

(b) details of the circumstances in which the former foreign representative ceased to be foreign representative in the foreign proceeding in relation to the debtor (including the date on which he ceased to be the foreign representative);

(c) details of his own appointment as replacement foreign representative in the foreign proceeding (including the date of that appointment).

(2) The application shall be accompanied by an affidavit in support sworn by the applicant which shall contain or have attached to it—

(a) a certificate from the foreign court affirming—

(i) the cessation of the appointment of the former foreign representative as foreign representative; and

(ii) the appointment of the applicant as the foreign representative in the foreign proceeding; or

(b) in the absence of such a certificate, any other evidence acceptable to the court of the matters referred to in paragraph (a); and

(3) All translations referred to in paragraph (c) must be certified by the translator as a correct translation.

The hearing and powers of court

14

(1) On hearing an application under paragraph 12(3) the court may—

(a) make an order confirming the status of the replacement foreign representative as foreign representative for the purpose of proceedings under these Regulations;

(b) dismiss the application;

(d) make an interim order;

(e) make any other order which the court thinks appropriate, including in particular an order making such provision as the court thinks fit with respect to matters arising in connection with the replacement of the foreign representative.

(2) If the court dismisses the application, it may also if it thinks fit make an order terminating recognition of the foreign proceeding and—

(a) such an order may include such provision as the court thinks fit with respect to matters arising in connection with the termination; and

(b) paragraph 15 shall not apply to such an order.

PART 5 — Reviews of Court Orders

Reviews of court orders—where court makes order of its own motion

15

(1) The court shall not of its own motion make a modification or termination order unless the foreign representative and the debtor have either—

(a) had an opportunity of being heard on the question; or

(b) consented in writing to such an order.

(2) Where the foreign representative or the debtor desires to be heard on the question of such an order, the court shall give all relevant parties notice of a venue at which the question will be considered and may give directions as to the issues on which it requires evidence.

(3) For the purposes of sub-paragraph (2), all relevant parties means the foreign representative, the debtor and any other person who appears to the court to have an interest justifying his being given notice of the hearing.

(4) If the court makes a modification or termination order, the order may include such provision as the court thinks fit with respect to matters arising in connection with the modification or termination.

Review application—affidavit in support

16

A review application must be supported by an affidavit sworn by the applicant stating—

(a) the grounds on which it is proposed that the relief applied for should be granted;

(b) whether, to the best of the knowledge and belief of the applicant, the interests of the debtor's creditors (including any secured creditors or parties to hire-purchase agreements) and any other interested parties, including if appropriate the debtor, will be adequately protected; and

(c) all other matters that in the opinion of the applicant will assist the court in deciding whether or not it is appropriate to grant the relief applied for.

Hearing of review application and powers of the court

17

On hearing a review application, the court may in addition to its powers under the Model Law to make a modification or termination order—

(a) dismiss the application;

(b) adjourn the hearing conditionally or unconditionally;

(d) make any other order which the court thinks appropriate, including an order making such provision as the court thinks fit with respect to matters arising in connection with the modification or termination.

PART 6 — Court Procedure and Practice with Regard to Principal Applications and Orders

Preliminary and interpretation

18

(1) This Part applies to—

(a) any of the following applications made to the court under these Regulations—

(i) a recognition application;

(ii) an article 21 relief application;

(iii) an application under paragraph 12(3) for an order confirming the status of a replacement foreign representative;

(iv) a review application; and

(b) any of the following orders made by the court under these Regulations—

(i) a recognition order;

(ii) an order granting interim relief under article 19 of the Model Law;

(iii) an order granting relief under article 21 of the Model Law;

(iv) an order confirming the status of a replacement foreign representative; and

(v) a modification or termination order.

Form and contents of application

19

(1) Subject to sub-paragraph (4) every application to which this Part applies shall be an ordinary application and shall be in Form ML 5.

(2) Each application shall be in writing and shall state—

(a) the names of the parties;

(b) the nature of the relief or order applied for or the directions sought from the court;

(d) the names and addresses of all those persons on whom these Regulations require the application to be served (so far as known to the applicant); and

(e) the applicant's address for service.

(3) The application must be signed by the applicant if he is acting in person, or, when he is not so acting, by or on behalf of his solicitor.

(4) This paragraph does not apply to a recognition application.

Filing of application

20

(1) The application (and all supporting documents) shall be filed with the court, with a sufficient number of copies for service and use as provided by paragraph 21(2).

(2) Each of the copies filed shall have applied to it the seal of the court and be issued to the applicant; and on each copy there shall be endorsed the date and time of filing.

(3) The court shall fix a venue for the hearing of the application and this also shall be endorsed on each copy of the application issued under sub-paragraph (2).

Service of the application

21

(1) In sub-paragraph (2), references to the application are to a sealed copy of the application issued by the court together with any affidavit in support of it and any documents exhibited to the affidavit.

(2) Unless the court otherwise directs, the application shall be served on the following persons, unless they are the applicant—

(a) on the foreign representative;

(b) on the debtor;

(d) if any person has been appointed an administrative receiver of the debtor or, to the knowledge of the foreign representative, as a receiver or manager of the property of the debtor in England and Wales, on him;

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) if to the knowledge of the foreign representative a foreign representative has been appointed in any other foreign proceeding regarding the debtor, on him;

(g) if there is pending in England and Wales a petition for the winding up or bankruptcy of the debtor, on the petitioner;

(h) on any person who to the knowledge of the foreign representative is or may be entitled to appoint an administrator of the debtor under paragraph 14 of Schedule B1 to the 1986 Act (appointment of administrator by holder of qualifying floating charge); ...

(i) if the debtor is a debtor who is of interest to the Financial Conduct Authority, on that Authority; and

(j) if the debtor is a debtor who is of interest to the Prudential Regulation Authority, on that Authority.

Manner in which service to be effected

22

(1) Service of the application in accordance with paragraph 21(2) shall be effected by the applicant, or his solicitor, or by a person instructed by him or his solicitor, not less than 5 business days before the date fixed for the hearing.

(2) Service shall be effected by delivering the documents to a person's proper address or in such other manner as the court may direct.

(3) A person's proper address is any which he has previously notified as his address for service within England and Wales; but if he has not notified any such address or if for any reason service at such address is not practicable, service may be effected as follows—

(a) (subject to sub-paragraph (4)) in the case of a company incorporated in England and Wales, by delivery to its registered office;

(b) in the case of any other person, by delivery to his usual or last known address or principal place of business in Great Britain.

(4) If delivery to a company's registered office is not practicable, service may be effected by delivery to its last known principal place of business in Great Britain.

(5) Delivery of documents to any place or address may be made by leaving them there or sending them by first class post in accordance with the provisions of paragraphs 70 and 75(1).

Proof of service

23

(1) Service of the application shall be verified by an affidavit of service in Form ML 6, specifying the date on which, and the manner in which, service was effected.

(2) The affidavit of service, with a sealed copy of the application exhibited to it, shall be filed with the court as soon as reasonably practicable after service, and in any event not less than 1 business day before the hearing of the application.

In case of urgency

24

Where the case is one of urgency, the court may (without prejudice to its general power to extend or abridge time limits)—

(a) hear the application immediately, either with or without notice to, or the attendance of, other parties; or

(b) authorise a shorter period of service than that provided for by paragraph 22(1),

and any such application may be heard on terms providing for the filing or service of documents, or the carrying out of other formalities, as the court thinks fit.

The hearing

25

(1) At the hearing of the application, the applicant and any of the following persons (not being the applicant) may appear or be represented—

(a) the foreign representative;

(b) the debtor and, in the case of any debtor other than an individual, any one or more directors or other officers of the debtor, including—

(i) where applicable, any person specified in particulars registered under section 1046 of the Companies Act 2006 (overseas companies) as authorised to represent the debtor;

(ii) in the case of a debtor which is a partnership, any person who is an officer of the partnership within the meaning of article 2 of the Insolvent Partnerships Order 1994 ;

(d) if any person has been appointed an administrative receiver of the debtor or as a receiver or manager of the property of the debtor in England and Wales, that person;

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) if a foreign representative has been appointed in any other foreign proceeding regarding the debtor, that person;

(g) any person who has presented a petition for the winding up or bankruptcy of the debtor in England and Wales;

(h) any person who is or may be entitled to appoint an administrator of the debtor under paragraph 14 of Schedule B1 to the 1986 Act (appointment of administrator by holder of qualifying floating charge);

(i) if the debtor is a debtor who is of interest to the Financial Conduct Authority, that Authority;

(ia) if the debtor is a debtor who is of interest to the Prudential Regulation Authority, that Authority; and

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