Cross Border Restructuring and the Global Village Universalism in 2013 Louise Verrill Brown Rudnick LLP

The Four Gateways Council Regulation ECI 346/2000 (EC Insolvency Regulation) – Reciprocal in EU The Cross-Border Insolvency Regulations 2006 (“CBIR”) - Incremental Introduced the 1997 UNCITRAL Model Law on Cross-Border Insolvency – Very similar to the EC Regulation – In the US, enshrined as Chapter 15 – Non-mutual recognition Section 426 Insolvency Act 1986 – Designated Territories – Universalism = insolvency proceedings should apply worldwide – Comity = uniformity between proceedings in different jurisdictions Common Law – Emasculated Universality – In personam judgments capable of enforcement if: presence overseas claim or counterclaim submission to jurisdiction

Rubin v Eurofinance [2009] EWHC 2129 (CH) Claims in Chapter 11 proceedings against our clients regarding the benefits they received – Adversary proceedings against our clients. Chose not to appear – Summary and default judgment – 22/7/08 – Receivers sought to enforce the judgment in England UK Court of First Instance – Recognition sought under CBIR as foreign main proceedings and as foreign representatives and judgment to be enforced (CPR 70 and 73) – High Court (Nicholas Strauss QC) recognised receivers but refused to enforce judgment – No enforcement under CBIR

Court of Appeal Court of Appeal allowed enforcement under the common law: – Ordinary rules do not apply to bankruptcy – Bankruptcy proceedings include 238/239 equivalent – NY orders part of bankruptcy proceedings – Collective enforcement – Bankruptcy should be unitary and universal – No enforcement under Article 27 CBIR but maximum assistance Supreme Court Enforcement under rules of private international law, not common law – No special status – Any changes to be made by legislators – CBIR do not provide for enforcement – Nor does s426

Contrast with:- Homburg Invest Inc “H11” – Canadian real estate company – over 100 Canadian and Dutch subsidiaries – Assets in Canada, US, Germany, Netherlands and Latvia – In excess of Euro1billion in debt Euro400million in bonds mainly held by Dutch pensioners Netherlands not signatory to UNCITRAL – Global economic crisis leaves Homburg Invest Inc unable to service debt – Canadian Court has recently approved a plan produced in the Canadian CCAA process to restructure HII implementation in US and the Netherlands – Following extensive advocacy and marketing of the plan it has been agreed by all the creditors in the Netherlands and Canada

Louise Verrill Partner Tel +44 (0)