Cross Border Insolvency

With economic integration and globalisation on the increase, the obstacles to international investment and business continue to be removed.

The inherent risks and complications, however, of carrying out international business remain. As a result, insolvency practitioners in England and Wales are increasingly having to deal with the recovery and realisation of assets situated overseas, and claims by foreign entities to the assets of an insolvent company or individual in England and Wales.

Cross-border insolvency issues arise when financially distressed debtors own assets or have creditors in more than one country. Many of the companies that enter insolvency every day have some cross-border element and many involve offshore jurisdictions. As a result of the growth in cross-border insolvency, there has been a corresponding increase in the various sources of law to be applied to any accompanying legal issues.

The team often represents appointment takers, creditors and other stakeholders in cross-border insolvency matters, typically focusing on the recognition of foreign insolvency officials and their powers, and issues relating to choice of law rules, jurisdiction rules and rules as to the enforcement of judgments.

National insolvency regimes often have very different approaches to key issues, for example in relation to the treatment of secured creditors, rights of set-off and corporate rehabilitation regimes. The team has dealt with and negotiated the challenges of multi-jurisdictional insolvency, often cooperating with insolvency officials and other interested parties abroad, to provide clients with a coherent strategy and a creative solution that suits their needs.

Work areas include:

• Chapter 7 Bankruptcy Code liquidations
• Chapter 15 applications in the US
• Bankruptcy investigations
• Issues as to COMI to determine the main insolvency proceedings
• Section 426 IA 1986 assistance applications
• Advising on the CBIR Model Law
• Official Creditors Committee Representation
• Offshore insolvency proceedings
• Schemes of arrangement