The Cross-Border Insolvency Regulations 2006

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 EU Insolvency Regulation, the Insolvency Act 1986 (with the exception of Part 3 of that Act) or by or under that Regulation or 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 EU Insolvency Regulation, the Insolvency Act 1986 (with the exception of Part 3 of that Act), the Bankruptcy (Scotland) Act 1985 or by or under that Regulation or 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 1986 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 388 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 1985 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 EU Insolvency Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 as that Regulation forms part of domestic law on and after exit day

• (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 1986 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).

...

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.

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.

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.

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.

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

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.

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.

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

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.

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.

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;

• (c) coordination of the administration and supervision of the debtor's assets and affairs;

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

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

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.

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.

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.

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.

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.

Editorial notes

2A

Where the EU Insolvency Regulation applies the centre of the debtor's main interests is to be determined in accordance with that Regulation.