|
The
court had jurisdiction to, and did, sanction schemes of arrangement
under the Companies Act 1985 ("the 1985 Act") s.425 in respect
of 17 Dutch insurers and one Dutch reinsurer, none of which had their
centre of main interest or an establishment in England and Wales.
18 companies
applied for approval of their respective schemes of arrangement. The
court being satisfied that the formalities in respect of the convening
of the creditors meetings had been complied with, that the requisite
majorities had been achieved, and that the schemes were fair, was only
concerned to ensure it had jurisdiction to sanction the schemes. This
concern arose from the fact that each of the scheme companies was a
Dutch company and that none had its centre of main interest, nor an
establishment, in England and Wales.
S. 425 of the 1985 Act enabled the court to sanction a scheme of arrangement
in respect of any company "liable to be wound up under this Act".
The words "this Act" had been extended to mean certain parts
of the Insolvency Act 1986 ("the 1986 Act"). S. 225 of 1986
Act provides for the winding up of a company incorporated outside Great
Britain subject to the EC regulations. The court accepted that there
was nothing in the 1986 Act which inhibited its territorial jurisdiction
and went on to consider the applicable EC Regulations.
Regulation 1346/2000 ("the 2000 Regulations") on insolvency
proceedings expressly did not apply to insurance undertakings and so
had no impact on the potential jurisdiction of the court to wind up
the 17 insurance companies. The 2000 Regulations did potentially apply
to the one Dutch reinsurer, DAP Holding N.V. However, the court concluded
that there was nothing in the 2000 Regulations which precluded the court
from concluding that a foreign corporation like DAP, with neither its
centre of main interest nor an establishment in England and Wales was
liable to be wound up. This was provided there was sufficient connection
with England and Wales in order for the court to exercise the jurisdiction
to wind up.
Although the 17 Dutch insurers were subject to the Insurers (Re-organisation
and Winding Up) Regulations 2004 ("the 2004 Regulations"),
regulation 5 of the 2004 Regulations provided that for the purpose of
s. 425 of the 1985 Act an EEA insurer is to be treated as a company
liable to be wound up under the 1985 Act if it would be so liable but
for a prohibition in regulation 4 of the 2004 Regulations. Having concluded
that a foreign corporation was liable to be wound up as a matter of
jurisdiction under the 1986 Act, it followed that the 17 insurers were
liable to be wound up by reason of operation of regulation 5 of the
2004 Regulations.
Accordingly, the court had jurisdiction to sanction all 18 schemes and
did so.
|