Vol 15 (2018) - Issue 1

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When Is COMI Not Enough?

The Scottish court has recently issued a written Opinion (in the case of Bank Leumi (UK) PLC v Screw Conveyor Limited) to clarify the approach taken in relation to a request made by way of a court petition seeking the making of an administration order in relation to a company registered in England and Wales. The Scottish Court concluded that it did not have jurisdiction to make the orders sought in relation to the English company and, given the absence of Scottish judicial authority on the subject, issued the Opinion to provide guidance to practitioners.
For international practitioners operating outwith the UK, the issues arising in this case relate to the fact that companies within the UK are subject both to the European regulations, which set out the rules to govern which member state has jurisdiction to open main insolvency proceedings in relation to a company, and UK domestic law, which sets out its own rules to determine which courts within the UK have jurisdiction to deal with insolvency proceedings of a company registered in one part of the UK. Within the single member state that is the UK, this is a particularly pertinent issue given the three distinct legal jurisdictions which operate within the UK i.e. Scotland, Northern Ireland and England and Wales.