Key Point

No recognition order was made where the main foreign insolvency proceedings had ended even where the plan agreed in those proceedings was in part still to be implemented.

The Facts

Two applications under the Cross Border Insolvency Regulations 2006 ("CBIR") were made in relation to Sanko Holdings Ltd ("Sanko"), a Japanese company. The first was for continued recognition of Mr Tabata as foreign representative of Sanko for the purpose of allowing him to implement Sanko's reorganisation plan (the "Plan") which was approved during the course of insolvency proceedings in Japan (the "Recognition Application"). The second was for payment to Sanko of funds held by the court pursuant to orders made by the Admiralty Court (the "Funds") (the "Remission Application"). Glencore Ltd ("Glencore"), who entered into a contract with Sanko for the carriage of certain cargo from Bulgaria to New Orleans, opposed that application.

Decision

The Recognition Application was dismissed as the court rejected Mr Tabata's submission that despite leaving formal insolvency proceedings the Plan still needed to be implemented. In relation to the Remission Application, the court allowed the Funds to be paid into an account in the joint names of the parties solicitors but on the basis that Glencore issue an expedited application before the Japanese court for an order for the preservation of the Funds and give a cross undertaking in damages.

Comments

There can be no recognition as a foreign representative when there are no foreign proceedings to be recognised even if certain matter relating to those proceedings remains outstanding.

Tabata v Glencore Ltd [2015] EWHC 1031 (Ch)