Comity and the court's inherent jurisdiction—application and effects
Comity and the court's inherent jurisdiction—application and effects

The following Restructuring & Insolvency guidance note provides comprehensive and up to date legal information covering:

  • Comity and the court's inherent jurisdiction—application and effects
  • Brexit impact
  • Comity
  • Universalism and territorialism
  • Supreme Court guidance—Rubin v Eurofinance and New Cap
  • Privy Council guidance—Singularis/Saad
  • Privy Council guidance—Stichting Shell Pensioenfonds v Krys

Brexit impact

This Practice Note is impacted by the decision of the UK on 23 June 2016 to leave the European Union. For further details on the impact on the Recast Regulation on Insolvency, see Practice Note: Brexit—impact on Recast Regulation on Insolvency.

We will continue to monitor developments in this respect and throughout the negotiation period and beyond. In the meantime, for further reading on the impact of Brexit and related issues facing lawyers in this area, see Practice Note: Brexit—worst case scenarios for R&I lawyers.

For updates and details of other Brexit related developments and legislation, see Practice Note: Brexit SI tracker for R&I practitioners. For access to related documents and further reading on Brexit, see: Brexit toolkit.

Comity

Comity is the general common law principle that courts will recognise and enforce foreign proceedings, provided that they are not:

  1. contrary to public policy

  2. contravening fundamental standards of procedural fairness

  3. based on fraud/unfairness

  4. giving effect to foreign penal laws (eg the US Securities Exchange Act 1934 had civil and criminal sanctions and its purpose was to prevent and punish specific acts and omissions) (Schemmer v Property Resources)Schemmer v Property Resources [1974] 3 All ER 451

In practice, it will only be used as a last resort in England where the following do not apply to assist a foreign office-holder making an inbound request for help from English courts:

  1. Recast Regulation on Insolvency, Regulation (EU) 848/2015 (Recast Regulation on Insolvency) (see Practice Note: Recast Regulation: Main proceedings, secondary and territorial proceedings). For example, if the centre of main interests (COMI) is not in England or the debtor does not have