Lawyers with financially distressed clients have long been alive to the potential advantages of forum shopping. At its simplest, forum shopping means little more than identifying the optimal jurisdiction for the restructuring or insolvency of a given company and heading that way. For example, if you foresee potential problems with the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) which might scupper a sale, try the Netherlands; if you need to force through a debt-for-equity swap, the UK may be your best option; if you are advising the employees, head for France.
It was thought that the EC Regulation on Insolvency Proceedings, which came into force on 31 May, 2002, would reduce forum shopping as it sought to establish a framework for determining where a company’s insolvency should be based. While the regulation has had a fairly dramatic impact on the conduct of pan-European insolvencies, forum shopping never quite went out of fashion. One thing has changed though — the language. ‘Migration’ has become the new forum shopping.
Under the regulation, the law that governs the main insolvency proceedings of a company depends on the whereabouts of its ‘centre of main interests’ (or COMI). An initial concern was that the lack of certainty surrounding the location of a company’s COMI might lead to confusion, delay and expensive legal debate. However, as case law has developed, the mist has started to clear and the legal bills have started to shrink. What is now clear is that when determining a company’s COMI, the presumption in favour of the place of a company’s registered office can only be rebutted if factors which are both objective and ascertainable by third parties establish that the COMI is elsewhere.
Recent developments have shown, however, that there remain good reasons why a company may wish to migrate to a specific jurisdiction, and techniques have been developed in certain jurisdictions (notably Germany, but with Austria and others in hot pursuit) to facilitate this. Much traffic has been heading towards the
The most recent chapter in this particular story opens with the case of Deutsche Nickel, a German stock corporation, which magically transformed itself from a distressed company struggling with unwieldy German securities law into a new and improved English-registered company, able to appoint English administrators and push through a company voluntary arrangement. The transformation was a success — not least because it was fully supported by its creditors.
Other recent cases, however, have highlighted difficulties that may be encountered along the way. One case involved a specialist German construction business that traded primarily from
One consequence of the regulation is that it establishes a ‘race to court’. The reason is that if any given European Union court determines that a company’s COMI is within its jurisdiction and makes an order commencing insolvency proceedings, only its courts (or ultimately the European Court of Justice) can overturn that decision.
In the Hans Brochier case, although the parties did not know it, they were in a race to court and the English directors won. As such, on 4 August, 2006, the directors appointed English administrators to the company on an out of court basis. In doing this, they stated that the company’s COMI was in
When the existence of the parallel proceedings came to light, it was clear that the English administrators were appointed first and, as such, any attempt to overturn their appointment would have to be made to the English court.
Under German law, the Federal Employment Agency (FEA) provides funding to an insolvency officeholder to enable him to pay employees for a three-month period — to allow the officeholder breathing space to trade and find a buyer. In Hans Brochier, the FEA would not make funds available unless the main insolvency proceedings were in
This gave Exner a problem. In order to trade the business and sell it as a going concern, he needed FEA funding. To get it, however, he needed the English court to find that the directors had got it wrong and that the company’s COMI was in fact in
Fortunately, shortly after their appointment, the English administrators made their own assessment and concluded that Hans Brochier’s COMI was not in the
So the story had almost reached a happy ending, but the directors were not prepared to give up so easily. Their next step was to appoint a second set of administrators on the basis that there was an ‘establishment’ in the
Exner took the view that although the company’s registered office was in
On this basis, Exner made a successful application to the
Important lessons can be learnt. Firstly, prior to making an out-of-court appointment, directors should seriously consider where the company’s COMI is and not just assume that it is where the registered office is located. Secondly, officeholders should, on appointment, independently assess the directors’ analysis. From the directors’ perspective, mis-stating the COMI can be an expensive mistake, as they can be held liable to indemnify the administrators for the cost of the invalid appointment.
So far, we have had the good (Deutsche Nickel), the bad (Hans Brochier) and the next case will establish whether it is going to turn ugly: Schefenacker.
Schefenacker is a seriously big business, in financial trouble. An automotive supplier with a particularly complex group structure and numerous stakeholders, Schefenacker was initially attracted by the possibility of migrating to the
Rumours of an impending migration abound, but matters are not proceeding smoothly. What is clear is that the nationality switch will only be possible if the proposal has the overwhelming support of Schefenacker’s creditors. This may not be easy to achieve, as the customers — namely the large car manufacturers — may well prefer a formal German insolvency process and, as such, the Schefenacker migration is in the balance. Whatever the outcome, it is unlikely to be the final chapter in this particular story.
Robert Hickmott is a partner at CMS Cameron McKenna. Robert Hickmott and Alex Ballman of CMS Hasche Sigle acted for Exner of Beck & Co.