Abuse of process and recognition under the UNCITRAL Model Law on Insolvency—Re OGX Petróleo e Gás SA Nordic Trustee A.S.A

Abuse of process and recognition under the UNCITRAL Model Law on Insolvency—Re OGX Petróleo e Gás SA Nordic Trustee A.S.A

When will an application for recognition under the UNCITRAL Model Law be treated as an abuse of process? Stefan Ramel of Guildhall Chambers comments on a ruling that clarifies the duties on an applicant for a recognition order under the Model Law.

Original news

Re OGX Petróleo e Gás SA Nordic Trustee A.S.A. and another v Ogx Petroleo E Gas S.A. (Em Recuperação Judicial) and others [2016] EWHC 25 (Ch), [2016] All ER (D) 62 (Jan)

The Chancery Division held that foreign representatives and their advisers had to ensure that the valuable process for recognition under the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law), as incorporated into English law by the Cross-Border Insolvency Regulations 2006, SI 2006/1030 (CBIR 2006), was not misused. When seeking recognition, full and frank disclosure had to be made to the court in relation to the consequences that recognition of the foreign proceeding might have upon third parties who were not before the court.

How did the issue arise?

OSX 3 is a floating production, storage, and offloading vessel owned by OSX3 Leasing B.V. (Leasing) a Dutch company. OSX 3 was constructed with the aid of finance supplied by Nordic Trustee S.A. (Nordic) in respect of which Nordic held a $500m secured bond from Leasing.

Leasing chartered OSX 3 to OGX Petroleo GAS S.A. (OGX), a Brazilian company, on 6 March 2012. All Leasing’s rights under the charter were then assigned to Nordic on 26 March 2012. The charter was for 20 years. In October 2013, OGX found itself in financial difficulties. In June 2014, OGX’s creditors and the Brazilian Bankruptcy Court approved a reorganisation plan. Article 49 of the Brazilian bankruptcy law (No. 11,101/05), which was relevant to determining which creditors were affected and bound by the plan, provides that the relevant debts are ‘all claims existing on the date of the petition are subject to

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About the author:

Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.

Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.