The Cross-Border Insolvency Regulations (Northern Ireland) 2007

Article 1. Scope of Application

1.  This Law applies where—

(a) assistance is sought in Northern Ireland by a foreign court or a foreign representative in connection with a foreign proceeding; or

(b) assistance is sought in a foreign State in connection with a proceeding under Northern Ireland insolvency law; or

(c) a foreign proceeding and a proceeding under Northern Ireland insolvency law in respect of the same debtor are taking place concurrently; or

(d) creditors or other interested persons in a foreign State have an interest in requesting the commencement of, or participating in, a proceeding under Northern Ireland insolvency law.

2.  This Law does not apply to a proceeding concerning—

(a) a licence company within the meaning of section 26 of the Transport Act 2000 (1)(air traffic services);

(b) a building society within the meaning of section 119 of the Building Societies Act 1986(2) (interpretation);

(c) a UK credit institution or an EEA credit institution or any branch of either such institution as those expressions are defined by regulation 2 of the Credit Institutions (Reorganisation and Winding Up) Regulations 2004(3) (interpretation);

(d) a third country credit institution within the meaning of regulation 36 of the Credit Institutions (Reorganisation and Winding Up) Regulations 2004 (interpretation of this Part);

(e) a person who has permission under or by virtue of Parts 4 or 19 of the Financial Services and Markets Act 2000(4) to effect or carry out contracts of insurance;

(f) an EEA insurer within the meaning of regulation 2 of the Insurers (Reorganisation and Winding Up) Regulations 2004 (5)(interpretation);

(g) a person (other than one included in paragraph 2(e) pursuing the activity of reinsurance who has received authorisation for that activity from a competent authority within an EEA State; or

(h) any of the Concessionaires within the meaning of section 1 of the Channel Tunnel Act 1987(6).

3.  In paragraph 2 —

(a) in sub-paragraph (e) the reference to “contracts of insurance” must be construed in accordance with—

(i) section 22 of the Financial Services and Markets Act 2000 (classes of regulated activity and categories of investment);

(ii) any relevant order under that section; and

(iii) Schedule 2 to that Act (regulated activities);

(b) in sub-paragraph (g) “EEA State” means a State, other than the United Kingdom, which is a contracting party to the agreement on the European Economic Area signed at Oporto on 2 May 1992.

4.  The court shall not grant any relief, or modify any relief already granted, or provide any co-operation or coordination, under or by virtue of any of the provisions of this Law if and to the extent that such relief or modified relief or cooperation or coordination would—

(a) be prohibited under or by virtue of—

(i) Part V of the Companies (No.2) (Northern Ireland) Order 1990(7);

(ii) Part 3 of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999(8); or

(iii) Part 3 of the Financial Collateral Arrangements (No. 2) Regulations 2003(9);

in the case of a proceeding under Northern Ireland insolvency law; or

(b) interfere with or be inconsistent with any rights of a collateral taker under Part 4 of the Financial Collateral Arrangements (No. 2) Regulations 2003 which could be exercised in the case of such a proceeding.

5.  Where a foreign proceeding regarding a debtor who is an insured in accordance with the provisions of the Third Parties (Rights against Insurers) Act (Northern Ireland) 1930(10) is recognised under this Law, any stay and suspension referred to in article 20(1) and any relief granted by the court under article 19 or 21 shall not apply to or affect—

(a) any transfer of rights of the debtor under that Act; or

(b) any claim, action, cause or proceeding by a third party against an insurer under or in respect of rights of the debtor transferred under that Act.

6.  Any suspension under this Law of the right to transfer, encumber or otherwise dispose of any of the debtor’s assets—

(a) is subject to the right which the registered owner has under section 34 of the Land Registration Act (Northern Ireland) 1970(11) to transfer the land or any part thereof, and under paragraph (2) of Part II of Schedule 6 to that Act to have a charge entered as a burden on the title register ;

(b) is subject to paragraph (5)(1) of Schedule 7 to the Land Registration Act (Northern Ireland) 1970, where the powers referred to in that paragraph are exercised by the owner of a registered charge; and

(c) in any other case, shall not bind a purchaser of an estate in good faith for money or money’s worth unless the purchaser has express notice of the suspension.

7.  In paragraph 6—

(a) “registered charge” and “estate” have the same meaning as in section 94 of the Land Registration Act (Northern Ireland) 1970(12); and

(b) “purchaser” has the same meaning as in section 2 of the Conveyancing Act 1881(13).

Article 2. Definitions

For the purpose of this Law—

(a) “the court” means the High Court of Justice in Northern Ireland (Chancery Division) exercising its jurisdiction in accordance with the provisions of Article 4 and in respect of administrative functions includes the Bankruptcy and Companies office;

(b) “the EC Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of 29 May 2000 on Insolvency Proceedings(14);

(c) “establishment” means any place of operations where the debtor carries out a non-transitory economic activity with human means and assets or services;

(d) “execution” means enforcement of a judgement or order under the Judgments Enforcement (Northern Ireland) Order 1981(15);

(e) “foreign court” means a judicial or other authority competent to control or supervise a foreign proceeding;

(f) “foreign main proceeding” means a foreign proceeding taking place in the State where the debtor has the centre of its main interests;

(g) “foreign non-main proceeding” means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of sub-paragraph (c) of this article;

(h) “foreign proceeding” means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceedings the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganisation or liquidation;

(i) “foreign representative” means a person or body, including one appointed on an interim basis, authorised in a foreign proceeding to administer the reorganisation or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding;

(j) “hire-purchase agreement” includes a conditional sale agreement, a chattel leasing agreement and a retention of title agreement;

(k) “Northern Ireland insolvency law” means provision made by or under the Insolvency (Northern Ireland) Order 1989(16) (with the exception of Part 4 of that Order) or by or under that Order as extended or applied by or under any other statutory provision (excluding these Regulations);

(l) “Northern Ireland insolvency officeholder” means—

(i) the official receiver within the meaning of Article 355 of the Insolvency (Northern Ireland) Order 1989 when acting as liquidator, provisional liquidator, trustee, interim receiver or nominee or supervisor of a voluntary arrangement; and

(ii) a person acting as an insolvency practitioner within the meaning of Article 3(17) of that Order but shall not include a person acting as an administrative receiver

(m) “section 426 request” means a request for assistance in accordance with section 426 of the Insolvency Act 1986(18) made to a court in any part of the United Kingdom;

(n) “secured creditor” in relation to a debtor, means a creditor of the debtor who holds in respect of his debt a security over property of the debtor;

(o) “security” means any mortgage, charge, lien or other security

Article 3. International obligations of Northern Ireland under the EC Insolvency Regulation

To the extent that this Law conflicts with an obligation of the United Kingdom under the EC Insolvency Regulation, the requirements of the EC Insolvency Regulation prevail.

Article 4. Competent court

The functions referred to in this Law relating to recognition of foreign proceedings and cooperation with foreign courts shall be performed by the High Court and assigned to the Chancery Division.

Article 5. Authorisation of Northern Ireland insolvency officeholders to act in a foreign state

A Northern Ireland insolvency officeholder is authorised to act in a foreign State on behalf of a proceeding under Northern Ireland insolvency law, as permitted by the applicable foreign law.

Article 6. Public policy exception

Nothing in this Law prevents the court from refusing to take an action governed by this Law if the action would be manifestly contrary to the public policy of Northern Ireland.

Article 7. Additional assistance under other laws

Nothing in this Law limits the power of the court or a Northern Ireland insolvency officeholder to provide additional assistance to a foreign representative under other laws of Northern Ireland.

Article 8. Interpretation

In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith

(1)

2000 c.38

(2)

1986 c.53

(3)

S.I.2004/1045

(4)

2000 c.8

(5)

S.I. 2004/353, to which there are amendments not relevant to these Regulations

(6)

1987 c.53

(7)

Part V of S.I.1990 No.1504 (N.I. 10) was amended by S.R. 1991 No. 443 paragraph 49 of Schedule 5 to the Bank of England Act 1998 (c.11), S.I. 2001/3649, S.I.2001/3929, Schedule 4 to S.I. 2005/1454 (N.I.9), and paragraphs 49, 50, 51 and 52 of Schedule 2 to S.I. 2005/1455 (N.I.10)

(8)

S.I. 1999/2979 as extended to Northern Ireland by S.I. 2006/50; relevant amendments made by S.I. 2000/2952, S.I. 2001/3929, S.I. 2002/765 and S.I. 2003/2096

(9)

S.I. 2003/3226

(10)

1930 c.19 (N.I.) amended by S.I. 1989/2405 (N.I. 19) and S.R. 2004 No. 307

(11)

1970 c.18 (N.I.) amended by S.I. 1992/811 (N.I. 7)

(12)

1970 c.18 (N.I.)

(13)

1881 c.41

(14)

Council Regulation (EC) 1346/2000, OJ No. L160, 30.06.00 p.1

(15)

S.I.1981/226 (N.I.6)

(16)

S.I. 1989/2405 (N.I. 19)

(17)

Article 3 was amended by Article 6 of S.I. 2002/3152 (N.I. 6), and by S.R. 2002 No. 334 and modified by S.R. 1995 No. 225, S.R. 2003 No. 550 and S.R. 2004 No. 307

(18)

1986 c.45; section 426 was amended by paragraph 16 of Schedule 4 to the Insolvency Act 2000 (c.39)