Vol 5 (2008) - Issue 1

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A Message from UCL Faculty of Laws

As a restructuring and insolvency partner for many years in a leading international law firm, I was always delighted to be asked to speak at conferences and to write commentaries and articles for publication in journals which I felt would shape opinion. Like many others, after the initial flush of flattery there came the inevitable angst of acceptance: yet another deadline to add to those of a busy practice, not to mention the need to raid the barren shelf of the ideas’ pantry. Earlier this year I left private practice to join UCL as Dean of the Faculty of Laws. When asked by the General Editor to contribute an introductory message to this issue of ICR, in which I might offer a few observations on this transition, I of course immediately accepted.

My first observation is therefore that old habits die hard! My second and more pertinent observation is that it is obvious to me, even after such a short time at UCL, that the barriers between practitioners and academic lawyers, if they ever did exist, are well and truly behind us. In virtually all areas where there is a discernible legal practice, legally-trained scholars whose main work is researching and teaching are increasingly interested and even involved in the disputes and transactions which occupy the days and nights of busy practitioners. Equally, many of the busiest practitioners somehow do find time to contribute fulsomely to many of the world’s leading law faculties, including UCL. From my new vantage point, it is an absolute delight to see the sheer volume of quality knowledge transfer taking place.

On a related note, readers may be interested to know that at UCL Faculty of Laws we shall shortly be launching a Centre for Restructuring, Insolvency and Bankruptcy Law. No fewer than six full-time members of the Faculty have a very significant domestic and international presence in this field, which probably makes UCL Laws the leading repository of such expertise of any university in the world. We intend to make the most of this. This new Centre will be led by Professor Ian Fletcher, who is, as many readers of this journal will know, one of the most influential scholars in this field in the world.

Given this forum, I cannot resist a few comments on the concept of Centre of Main Interests (COMI). As is well known, this notion is at the heart of both the EU Insolvency Regulation and the Uncitral Model Law on Cross-Border Insolvency, the latter having found substantial expression in the US as Chapter 15 of Bankruptcy Code. In the early days, when the UK courts were frequently persuaded in ex parte hearings that COMI was in the UK when, as a matter of corporate, employment and tax law, the company was self evidently somewhere else, this was hailed as lateral thinking and loudly applauded. However, as other EU jurisdictions followed suit, this has led to bizarre and irreconcilable results, such as a Dutch court, on the one hand, holding that the presumption that COMI is in the jurisdiction of the registered office can only be rebutted if there are virtually no activities in that jurisdiction, and an English court, on the other hand, holding that the presumption is ‘just another factor’ to be taken into account into deciding the question (BenQ Mobile Holding BZ LJN AZ 9985, Rb Amsterdam, 31 January 2007; Re Ci 4 net.com.inc [2004] EWHC 1941 and re Parkside Flexibles SA [2006] BCC 589).

It seems to me that the problem with the COMI question is that the stakes are simply too high. In the EU, recognition as main proceedings means that the local law which applies to them will (subject to certain exceptions) for most practical purposes be embedded for the duration of the case in the law of the recognising jurisdiction. Ironically, this may be a far more powerful intrusion into local practices and procedures than the harmonising regime which was found to be too difficult to agree in Europe and to which the EU Insolvency Regulation, including the COMI concept, represented a fall back response.