Varying the stay of proceedings against a foreign insolvent company (Re Pan Ocean Ltd)

Varying the stay of proceedings against a foreign insolvent company (Re Pan Ocean Ltd)

What should creditors do in the event they are forced into foreign insolvency proceedings?

Tony Beswetherick, junior counsel at 20 Essex Street who acted for the applicants in Re Pan Ocean Co Ltd, considers this case and urges creditors in this position to act quickly to stay the foreign adjudication proceedings if possible and to apply to vary any stay imposed by the Cross-Border Insolvency Regulations 2006 sooner rather than later.

Re Pan Ocean Co Ltd [2015] EWHC 1500 (Ch), [2015] All ER (D) 102 (Jun)

The applicants sought a variation of a recognition order insofar as it stayed the commencement of actions or proceedings against the first respondent company to permit them to pursue contractual claims against the company in arbitration proceedings. The Companies Court, in allowing the application, held that extant proceedings in the Republic of Korea did not prevent determination of the application and the claims had merit. In the context of substantive claims involving contracts governed by English law and agreeing to disputes being heard in arbitration in London, the order would be modified by lifting the stay preventing that arbitration.

What is the background to this case?

The case involved the question whether and in what circumstances the English court will permit arbitration proceedings to be brought within the jurisdiction against a company which has entered insolvency proceedings in another jurisdiction and where those foreign insolvency proceedings have been recognised by the English courts under the Cross-Border Insolvency Regulations 2006, SI 2006/1030 (the 2006 Regulations).

 How did the issue arise?

Pan Ocean Co Ltd (a company incorporated in Korea) carried on business in the shipping industry and had entered into an agreement and charter party with the applicants under which it was to provide the services of a vessel. Both of the contracts contained English governing law clauses and agreements to refer any disputes to a panel of arbitrators in London.

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