The severe economic ramifications of COVID-19 are being, and will be, felt across all areas of industry and society for some time to come. In the face of a sharp decline in global output and soaring public debt, few areas of trade and industry will avoid the financial impact of this public health crisis. Retail, hospitality and leisure and commercial real estate are just some of the areas that can be identified as worst hit. For the retail sector, in particular, COVID-19 has in some ways compounded existing weaknesses; challenges were already being highlighted and pressure felt by the larger retail landlord investors and funds well before the pandemic, as commented on by us earlier this year. Further strain will be felt by landlords as demand for office space shrinks, with working from home becoming the “new normal” for many. By contrast, logistics, distribution centres and warehousing could become net beneficiaries of the COVID-19 fall-out, as the popularity of online shopping reached new heights over the recent lockdown months.
Notwithstanding the government support packages that have been introduced in several jurisdictions and the temporarily curtailed rights of creditors, for many this will not be enough. Once the immediate crisis has passed, restructuring or formal insolvency for many companies will be inevitable or essential in order to secure the long term future of the business. The Appleby Restructuring and Insolvency team anticipate seeing the full spectrum of the restructuring and insolvency toolkit being utilised in the coming months to allow debtors to “right size”, to compromise the claims of creditors and to deploy processes available to secure sustainability at this unprecedented time. For larger corporate structures, this could entail restructuring of debt, addressing underperforming or distressed entities in various jurisdictions within the group, or seeking to have a formal process commenced in one jurisdiction recognised in another.
In this update, we consider the powers and discretion of the domestic courts in the leading offshore jurisdictions where Appleby offices are located to assist the courts of a foreign jurisdiction with a view to facilitating cross border restructuring.
The Companies Act 1981 (Companies Act) and the Companies (Winding-Up) Rules 1982 (Rules) are the main pieces of legislation regulating the reorganisations and insolvencies of corporate entities in Bermuda. The reorganisation and insolvency regimes provided by the Companies Act are derived largely from the English Companies Act 1948. Any company to whom the Companies Act applies, being ordinarily a company that is incorporated in Bermuda, may avail itself of the insolvency and restructuring processes provided for in the Companies Act irrespective of whether it has any business operations or assets in Bermuda.
A petition for the reorganisation or winding up of a company, and any ancillary applications thereto (for example, an application for the appointment of provisional liquidators), is made to the Supreme Court of Bermuda, Commercial Court. There is a right of appeal to the Court of Appeal of Bermuda, with leave for appeals from interlocutory orders and without leave for final orders. The appellant is usually required to provide security for the costs of an appeal in accordance with the directions of the Registrar of the Court of Appeal.
Bermuda has not adopted the UNCITRAL Model Law on Cross-Border Insolvency 1997 and is not currently considering its adoption. Foreign liquidators may apply for recognition in Bermuda pursuant to Bermuda’s common law and the principles of comity.
There are no statutory mechanisms for the recognition of foreign insolvency proceedings or for cross-border cooperation in insolvency or restructurings. There is, however, substantial jurisprudence of the Bermuda court exercising its common law powers to recognise foreign insolvency and restructuring proceedings and to cooperate with courts of foreign jurisdictions, particularly in circumstances where:
- the subject company is incorporated in Bermuda;
- the subject company has assets located in Bermuda;
- the liquidators seek assistance that would be available to them both under the law of the foreign jurisdiction and under Bermuda law; and
- such recognition and cooperation are not contrary to Bermuda public policy.
The Supreme Court has issued two practice directives relating to cross-border insolvencies: Guidelines Applicable to Court to Court Communications in Cross-Border Cases, dated 1 October 2007; and Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency matters, dated 9 March 2017. The latter is based on the draft guidelines adopted by the Judicial Insolvency Network in October 2016.
Under the Reciprocal Judgements Act 1958 (Reciprocal Judgements Act), a judgment of a superior court in the United Kingdom or other designated common law jurisdiction may be registered as a judgment in the Bermuda courts to the extent the foreign judgment is final and conclusive as between the parties and is for a fixed sum of money (not being in respect of taxes or in respect of fines or penalties).
Under Bermuda’s common law, the Bermuda courts may, subject to certain requirements, recognise judgments from foreign jurisdictions not otherwise qualifying for registration under the Reciprocal Judgments Act for a liquidated sum by way of summary judgment.
The Bermuda insolvency and restructuring practice is at an interesting juncture. With increased regulation across the financial services industries (particularly insurance), the organic development and evolving flexibility of provisional liquidation on a ‘light touch’ basis, and the absence of statutory provisions governing provisional liquidation, the courts will be required to conduct an important balancing act when considering in particular the competing interests of creditor rights against the need to have deterrence-based regulation, as well as the costs of prolonged provisional liquidation against the prospects of a successful restructuring. While the courts have allowed provisional liquidation to evolve into a malleable tool that plays a vital role in cross-border business, it is anticipated that the courts may in due course start defining the boundaries and scope of provisional liquidation in a more clear and systematic manner.
British Virgin Islands
In 2003, the British Virgin Islands enacted the Model Law through Part XVIII of the Insolvency Act 2003. However, in common with the administration provisions which were also enacted at the same time, those provisions were never brought into force. The decision of the legislature to bring those provisions into force led Bannister J to conclude In re Bernard L Madoff Securities LLC BVIHCM 140/2010 that the common law entitlement of the Court to act in aid of a foreign process had been impliedly repealed. Bannister J was subsequently invited to depart from that decision in In Re C (A Bankrupt) BVIHCM 2013/0080 but he declined to do so in respect of officeholders from certain non-designated jurisdictions.
Although the Model Law was never brought into force, the same is not true of Part XIX of the Insolvency Act 2003, which was brought into force. That contains a suite of provisions which allows the Court to act to assist a foreign representative appointed in aid of a collective judicial or administrative proceeding relating to insolvency in a “relevant foreign country.” On 23 August 2005, 9 such countries were designated and they include the United Kingdom, the United States of America, Jersey, Japan, Hong Kong, Canada and Australia. Officeholders from those jurisdictions are entitled to seek orders, on an application by application basis. The consequence of Bannister J’s decision in Re C (A Bankrupt) is that officeholders from those jurisdictions will also be entitled to recognition at common law.
In cases to which Part XIX is not applicable, there are other routes by which the Court’s assistance can be obtained. Following the crisis in 2009, it became common to see parallel insolvency proceedings in the BVI and elsewhere, so that an insolvent BVI company may be wound up in the BVI and in another jurisdiction. To facilitate that, the BVI Court has the power to appoint an overseas practitioner when it is effecting an appointment, and the Court is a signatory to the Judicial Insolvency Network Guidelines on communication between Judges supervising insolvent estates. In cases where the assistance of the BVI Court is to be limited to the provision of evidence or the examination of witnesses, this can be achieve by a letter of request pursuant to the provisions of the Evidence (Proceedings in Foreign Jurisdictions) Act. It is possible that the Court will also appoint Provisional Liquidators, in order to facilitate a restructuring, as with a Scheme of Arrangement or through a US Chapter process.
In the turnaround context, there are issues which the coming period seems likely to resolve. Amongst them are whether Bannister J was right to hold that the common law power to act in aid of a foreign insolvency process was impliedly repealed, the extent to which the BVI Court will ask a foreign Court to initiate, for example, an administration process which is not available locally and the effectiveness of a “soft touch” Provisional Liquidation as a restructuring tool.
For many decades, the Cayman Islands has been recognised as a leading proponent of progressive cross-border insolvency law and practice. Indeed, prior to the Model Law on Cross-Border Insolvency (Model Law) being adopted by the UNCITRAL in May 1997, the Cayman Islands was among the jurisdictions that exemplified the standards and practices that came to be enshrined within the Model Law; an example being the BCCI liquidation (1992) in which the Grand Court of the Cayman Islands (Cayman Court) constructed a pooling arrangement between liquidation estates in the United Kingdom, Luxembourg and the Cayman Islands pursuant to which creditors of the pooling entities looked to that pool of assets for liquidation distributions.
However, when the Cayman Islands overhauled its cross-border insolvency legislation in 2009, inserting the international cooperation provisions of Part XVII of the Companies Law, the jurisdiction elected not to adopt the Model Law per se. Despite its non-adoption of the Model Law, the Cayman Islands has continued to build on a strong tradition of cross-border insolvency best practice and to exercise its court’s powers in aid of foreign proceedings in furtherance of comity between nations. It is fair to say that the Cayman Court applies Model Law principles in all but name.
Part XVII of the Companies Law codifies these longstanding international co-operation practices and is aligned with (although it does not directly apply) the Model Law. Part XVII has more in common with the former section 304 of the US Bankruptcy Code (although Part XVII is construed on its own terms) than Chapter 15 of the Bankruptcy Code which facilitates the continuation of the flexible approach to cross-border insolvency.
Part XVII applies to insolvency proceedings brought outside the Cayman Islands and to applications for recognition and assistance from the foreign representative of those proceedings. In overview, Part XVII provides:
- definitions which foreign representatives must come within in order to attain standing or seek ancillary relief from the Cayman Court (section 240);
- for the kinds of ancillary orders that the Cayman Court may make if it exercises its discretion to do so (section 241);
- criteria on the basis of which the Cayman Court may decide whether to exercise its discretion to grant ancillary orders (section 242); and
- for certain notice obligations arising upon issue of foreign insolvency proceedings in respect of companies incorporated in the Cayman Islands or foreign companies registered in the Cayman Islands (section 243).
Under Part XVII, the Cayman Court at all times retains its discretion in relation to making orders ancillary to or in assistance of a foreign insolvency proceeding. This contrasts with comparable legislation in other jurisdictions, such as Chapter 15 of the US Bankruptcy Code which requires the applicant to establish that the relevant proceedings are ‘foreign main proceedings’ (i.e. issued in the place the company has its centre of main interests) before recognition as of right is granted. In the Cayman Islands, there are no such threshold tests or automatic rights and foreign representatives are required to satisfy the Cayman Court that it is appropriate for the Cayman Court to exercise its discretion by granting the relief sought in the foreign representative’s application. As a consequence, the controversy surrounding applications of the Chapter 15 system, in which the Bankruptcy Court acts as a sole gatekeeper rigidly enforcing mandatory procedures without the benefit of court discretion, does not apply to the Cayman Islands’ cross-border law and practice, which maintains the flexibility and versatility for which it is known.
Guernsey is not a signatory to the UNCITRAL Model Law on Cross-Border Insolvency 1997 (Model Law) and is not a member of the European Union. As a consequence, a foreign officeholder cannot rely upon the EU Regulation on Insolvency Proceedings or the Model Law to seek recognition and assistance in Guernsey. However, foreign officeholders may seek recognition and assistance in Guernsey either via section 426 of the English Insolvency Act 1986 (Insolvency Act) or the common law.
For officeholders from England and Wales, Scotland, Northern Ireland, Jersey, or the Isle of Man, section 426 of the Insolvency Act has been extended to Guernsey by the Insolvency Act 1986 (Guernsey) Order, 1989. The procedure under section 426 of the Insolvency Act involves the foreign officeholder applying to the court in their home jurisdiction for an order that the home court send a letter of request to the Royal Court of Guernsey (Royal Court) seeking assistance. In such circumstances, the Royal Court considers that it has a duty to assist the foreign court unless there are compelling reasons for it not to do so. The Royal Court routinely recognises the appointment of UK liquidators, administrators and bankruptcy trustees. Upon granting such recognition, the Royal Court may apply, in relation to any matters specified in the request, the insolvency law which is applicable by either court in relation to comparable matters falling within its jurisdiction.
In Guernsey, foreign officeholders outside a designated jurisdiction must rely on the grant of recognition and assistance at common law. When a request comes from an overseas officeholder appointed outside a designated jurisdiction, the court may exercise its inherent power to provide recognition and assistance, provided there is a sufficient connection between the foreign officeholder and relevant jurisdiction. Following private international law principles, officeholders appointed by a national court in which a company is incorporated will be recognised by both the Guernsey and Jersey courts. In light of the decision by the Privy Council in Singularis Holdings Ltd v PricewaterhouseCoopers (Bermuda)  UKPC 36, the concept of modified universalism has been rolled back such that the full extent of the assistance the Royal Court may grant to foreign officeholders is still being worked out. In light of recent local case law, it would appear such assistance is limited to powers available to officeholders in a domestic insolvency.
Guernsey has a well-developed rescue culture, including the process of company administration, which is modelled on the English equivalent. Administration, like the equivalent procedure in other jurisdictions, provides insolvent companies with breathing space in order to maximise realisations and asset values without increasing liabilities. An administration application may be made in respect of a company by the company itself, its directors or its members, or a creditor. Currently, Guernsey does not permit out-of-court appointments by directors. The two purposes for which an administration order is made are either or both of the survival of the business of the company and a more advantageous realisation of assets than would be effected on a winding up. Once an application for an administration order is made, a moratorium prevents any “proceedings” being commenced or continued against the company by unsecured creditors and any existing application for the company’s winding up will be dismissed.
Finally, the States of Guernsey recently approved amendments to the Island’s corporate insolvency regime which includes the ability for the Royal Court to wind up non-Guernsey companies, being overseas companies or companies otherwise not registered in Guernsey, where they have ceased carrying on business, are unable to pay their debts within the current statutory parameters or on the just and equitable basis. Liquidators appointed over non-Guernsey companies under the new powers will be able to exercise their powers over those entities as if they were Guernsey-registered companies. A commencement date for the Ordinance introducing the amendments is still awaited.
Isle of Man
Corporate insolvency law in the Isle of Man is broadly similar to that which existed in England and Wales around 1985. The Isle of Man views itself as a secured creditor-friendly jurisdiction and as such has not developed the rescue culture adopted in England and Wales with the introduction of the Insolvency Act 1985 and the subsequent Enterprise Act 2002. Accordingly, Manx law does not provide for company voluntary arrangements or administrations.
There are, however, provisions in both the Companies Act 1931-2004 and the Companies Act 2006 for schemes of arrangement, mergers and/or consolidations. A scheme of arrangement involves a company entering into a compromise or arrangement with its creditors or members. The meaning of compromise or arrangement is wide and the agreement may be about anything that the company, its creditors or members may properly agree. Under any scheme, creditors or members must obtain some advantage which compensates them for the alteration of their rights. Once effective, the scheme is binding on all the members and creditors of each class that approved the scheme. It is worth noting that Manx law follows English authority on class composition and on what a compromise is for the purposes of a scheme. Similar statutory processes for schemes of merger or consolidation are set out in legislation.
Whilst not affecting the rights of secured creditors, the Isle of Man Court has been willing to be creative in using the tools available to facilitate attempts to rescue Manx companies. For example, the Isle of Man Court, in the case of Capita v Gulldale (CHP 2013/145), agreed to issue a letter of request to the High Court in London seeking the appointment by the High Court of administrators over an Isle of Man company, the centre of main interests of which was deemed to be nonetheless in the Isle of Man. The Isle of Man Court was satisfied that the issuing of a letter of request in the circumstances of that case would facilitate the most efficient and effective administration of the debtor company’s assets in the best interests of all concerned.
By way of a further example, in the unreported matter of 2e2 (IOM) Limited (CHP 13/0014) the Isle of Man Court was persuaded to follow lines of authority from the Cayman Islands and Hong Kong to use the appointment of provisional liquidators to provide a “breathing space” for an Isle of Man company that was the subsidiary of a UK company that was in administration to enter negotiations with its own direct creditors and, in due course, emerge from provisional liquidation without winding up. It is possible for a liquidator to be provisionally appointed at any time after the presentation of a winding up petition (section 178 of the Companies Act 1931). The appointment of a provisional liquidator should only be made if there is a prima facie case for making a winding up order and it is accepted that the appointment must be shown to serve some purpose which will justify the expense of a provisional liquidator being appointed.
The Isle of Man Court has a history of proactively assisting foreign courts in respect of insolvency proceedings and has been prepared to extend the scope of Manx common law to assist foreign liquidators when there has been no statutory power to provide such assistance. The Court has shown that it is willing to provide appropriate common law recognition and assistance to foreign insolvency officeholders, despite there being no statutory recognition provisions. Such recognition and assistance is subject to the restrictions set out in Rubin v Eurofinance SA  UKSC 46,  1 AC 236 and Singularis Holdings Ltd v PricewaterhouseCoopers (Bermuda)  UKPC 36. In that context, the Isle of Man Court cannot provide assistance that would not be available to the insolvency officeholder in his or her own jurisdiction. A foreign insolvency officeholder can apply directly or by letter of request from the UK court.
Under Article 49 of the Bankruptcy (Désastre) (Jersey) Law 1990 (the Désastre Law), the Royal Court of Jersey (Royal Court) may assist the courts of designated territories (presently the United Kingdom, the Isle of Man, Guernsey, Finland and Australia) in all matters relating to the insolvency of any person or entity. The Royal Court has power, on receiving a request from such a country for assistance, to exercise any jurisdiction that either it or the requesting court could exercise if the matters in respect of which assistance is requested fall within its jurisdiction. For other jurisdictions, the Royal Court may agree to assist under its inherent jurisdiction and under principles of comity, on a case-by-case basis. The principal factor which the Royal Court will take into account in deciding whether or not to assist on the grounds of comity will be the question of whether a request from Jersey to the jurisdiction in question would be accorded reciprocal treatment. It is therefore important that specific evidence on this issue be obtained.
For example, an English law-governed administration can be recognised by the Royal Court to the extent the latter court thinks fit to offer assistance. Foreign insolvency officials need to have authority to act in Jersey. The appointment of administrators or liquidators in the UK is governed by the laws of England and Wales and will require recognition by the Royal Court before the appointed officeholders have any standing to be able to deal with or realise Jersey situs assets of the insolvent company.
Procuring recognition in practice would involve engaging with the Viscount (the Royal Court insolvency official) to explain the strategy of the administration or liquidation, how Jersey employees, creditors and other stakeholders are to be dealt with and why the administration or liquidation is likely to deliver the best result for these interested parties. The Viscount (and the Royal Court) will be particularly concerned to protect where possible the interests of those creditors who would be afforded priority in a Jersey domestic insolvency, even where they would not be regarded as priority creditors in the insolvency process of the foreign jurisdictions. In Jersey, these creditors will include local authorities in respect of income tax, social security, local property taxes and – to a limited extent – a landlord in respect of unpaid rent. Once the Viscount is satisfied with the proposed strategy, the English insolvency practitioners should then approach the English court for a Letter of Request (LoR), to be issued to the Royal Court seeking recognition of their appointment in Jersey. This application will need to be made by English solicitors acting for the insolvency practitioners, but the Appleby team has extensive experience in advising on the wording of the LoR and in liaising with the Viscount. Once the LoR has been issued, an application will need to be made to the Royal Court for an order giving effect to the terms of the LoR. This process needs to be followed even if the appointed insolvency practitioners need to simply assign a lease to a buyer of the assets of an insolvent business, which is often the case in a retail insolvency where proprietary rights to the store itself ultimately allow continuance of trade. The officeholders would have no standing to procure such assignment, however, unless and until their appointment is recognised in the jurisdiction of the asset.
Most recently, the Royal Court took a pragmatic approach in recognising Canadian restructuring proceedings in respect of a Jersey-registered holding company of a wider group in distress. Notwithstanding that there was no equivalent restructuring process under Jersey law and that Canada is not a prescribed country or territory under the Désastre Law, the Royal Court considered a number of factors to determine that it was able to offer assistance to the Canadian court in this matter.
Jersey is an international finance centre and the Royal Court is well versed in matters of cross border restructurings and insolvencies. There are numerous authorities that can be pointed to demonstrating the willingness of the Royal Court to support general principles of comity and extend co-operation to other courts and Appleby is well placed to assist with this.
Where avoiding formal insolvency is the aim but a compromise of creditors is key, debtors in a different jurisdiction are able to compromise their Jersey creditors via a creditors’ scheme of arrangement.
A large corporate structure with entities domiciled in different jurisdictions will require a Jersey scheme to compromise the creditor claims of any Jersey entities within its group. There is no statutory route under Jersey law to provide for recognition of a foreign order, or other foreign proceedings, that may seek to extend to, or provide for, the compromise of creditor claims of a Jersey company. The Appleby team has acted in a number of member and creditor-led schemes in recent years and has seen the scheme rising in popularity as a restructuring tool. With the unprecedented, global financial challenges that Covid-19 presents, it is possible we will see more creditors being bound via utilisation of a scheme in a different jurisdiction.
The Mauritian chapter on cross border insolvency is governed by Part VI of the insolvency Act (Insolvency Act) which is itself based on the Model Law on Cross-Border Insolvency (1997) (MODEL Law).
Part VI is new to the Mauritian legal landscape as it came into force last year on 25 July 2019. It provides guidance on its scope as it defines the phrase ‘insolvency proceeding’ as a ‘collective judicial or administrative proceeding, including an interim proceeding’ under an insolvency, which can be either personal or corporate and, in which ‘the assets and affairs of a debtor are subject to control or supervision by a judicial or other authority competent to control or supervise that proceeding, for the purpose of reorganisation or liquidation.’
As regards the perspective of the Mauritian courts, it is the Bankruptcy Division of the Supreme Court (Supreme Court) which has competence generally over matters under the Insolvency Act and under Part VI (Bankruptcy Division). However, an exception prevails in relation to applications under the Ninth Schedule of the Insolvency Act (see below) (Ninth Schedule) in respect of which it is the Supreme Court itself which shall entertain applications to recognise foreign proceedings and for co-operation with foreign courts. Part VI goes further and empowers the Chief Justice to make rules in his discretion on (a) the practice and procedure of the Bankruptcy Division under Part VI (b) the mechanism to give effect to give effect to Part VI and (c) the mechanism to lodge applications under the Ninth Schedule.
The Ninth Schedule is particularly relevant as it is designed to provide rules and an effective mechanism to deal with cases of cross-border insolvency. In particular, it declares that it specifically applies when (a) assistance is requested by a foreign court or a foreign representative in relation to a foreign proceeding (b) assistance is requested in a foreign state in relation to a Mauritian insolvency proceeding (c) a foreign proceeding and a Mauritian insolvency proceeding are running concurrently in relation to the same debtor or, (d) creditors or other interested persons in a foreign state have an interest in requesting the commencement of or participation in a Mauritian insolvency proceeding. Of interest, the Ninth Schedule declares that its scope excludes financial institutions or banks licensed under Mauritian Banking Act 2004 and which are subject to the appointment of a statutory conservator under that Banking Act 2004.
Inasmuch as Part VI came into force recently, there is a lack of guidance from the Bankruptcy Division and the Supreme Court as to how these provisions will be applied and, considering that the Chief Justice has not yet exercised his statutory discretion to formulate rules under Part VI. However, it is anticipated that when interpreting Part VI, the Bankruptcy Division and the Supreme Court will have regard to the preamble to Part VI which declares that when interpreting it, reliance may be sought from the MODEL Law as well as any documents which relate to the MODEL Law and that emanate from the UNCITRAL or its working group on the MODEL Law.
As regards the Ninth Schedule, its application and interpretation appear to be less problematical considering that it has laid down the guiding rules for instance, (a) the public policy exception by which the Supreme Court shall decline applications under the Ninth Schedule which, in its view, ‘would be manifestly contrary to the public policy of Mauritius’ (b) when interpreting the Ninth Schedule the Supreme Court must stand guided to its international origin and the need to foster uniformity in its application and the need to observe good faith and, (c) the presumption which relates to certificates issued by a foreign court which confirms the existence of a foreign proceeding and that a foreign representative has been appointed.
Under the Insolvency Act, 2013 (Insolvency Act), the Supreme Court of Seychelles (Seychelles Court) has the jurisdiction in relation to the insolvency or bankruptcy of any company or individual, respectively. The Insolvency Act does provide for application of the United Nation’s Model Law on Cross-Border Insolvency as well as rules for dealing with cases of cross-border insolvency. However, these provisions of the Insolvency Act have not come into force as at the date of this update. Therefore, a creditor seeking recognition of a foreign order or judgment in relation to a cross-border insolvency in Seychelles would have to first get the foreign order or judgment duly registered with the Seychelles Court.
Judgments from the courts of England and Wales and those of commonwealth countries would be enforced by the Seychelles Court without re-examination of the merits of the case provided that the judgment is duly registered in the Seychelles Court. For judgments obtained in countries which are not covered above, any final and conclusive monetary judgment from such courts for a definite sum against an entity in Seychelles may be the subject of enforcement proceedings in the Supreme Court of Seychelles under the common law doctrine of obligation by action on the debt evidenced by the judgment of such competent foreign court.