Vol 20 (2023) - Issue 2

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How Are the English Courts Adapting to Post-Brexit Challenges?

Synopsis
Many members of the UK restructuring and insolvency community were concerned about the impact of Brexit on our industry and its place in Europe and the wider world prior to the UK's departure from the European Union ('EU'). This article considers how the English courts have approached some of the thornier restructuring and insolvency issues which have been thrown up by Brexit. Rather than seeing Brexit as a 'cliff edge' over which the UK's restructuring and insolvency community has fallen, in this article we argue that the picture to date for English restructurings and insolvencies has been one of broad and considerable continuity, notwithstanding the changes caused by leaving the EU and ongoing developments at the time of writing.
Although Brexit removed certain key pillars of the legal framework concerning jurisdiction, recognition and enforcement of cross-border insolvency and restructuring proceedings as between the UK and EU Member States, English courts continue to work with other well-established tools in each of these areas. As the UK is an international commercial centre, having deep ties with far-off jurisdictions as well as its nearer European neighbours, the English courts have considerable expertise in these issues outside of the EU framework. Indeed, two years after the end of the Brexit transition period, and as cross-border insolvencies and restructurings continue to come to the English courts, it is striking how few judgments have Brexit-related
issues at their heart.
In considering the question of how the English courts are adapting to the post-Brexit regime in respect of cross-border restructurings and insolvencies, this article will cover three broad topics. First, we will recap the key post-Brexit changes to the legal framework that affect recognition of restructuring and insolvency proceedings in England and the EU Member States.
Second, we will discuss English restructuring proceedings that are frequently used by European debtors, and discuss how the English courts continue to take a commercial and open approach to facilitating those proceedings. Third, we will consider how the changes in the legal framework might affect an insolvent EU company that needs its insolvency proceeding and/or judgments against third parties (whether arising out of the insolvency or not) to be recognised and enforced in England.