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

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

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

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

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)

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. Regulation (EU) 2015/848 (OJ L141 5.6.2015 p 19), Recast Regulation on Insolvency [EU Recast Regulation on Insolvency]. For example, if the foreign insolvency/restructuring proceedings were commenced after 11pm on 31 December 2020 (see Practice Note: Brexit—impact on Recast Regulation on Insolvency)

  2. the UNCITRAL Model Law as implemented by the Cross-Border Insolvency Regulations 2006 (CBIR), SI 2006/1030 (see Practice Note: When does UNCITRAL (implemented by the Cross-Border Insolvency Regulations) apply and what are the effects?). For example, if the office-holder is not a foreign representative (eg a receiver)

  3. section 426 of the Insolvency Act 1986 (IA 1986) (see Practice Note: Court-to-court assistance and Insolvency Act 1986, s 426). For example, if the requesting office-holder is not from one of

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