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

As of exit day (31 January 2020) the UK is no longer an EU Member State. However, in accordance with the Withdrawal Agreement, the UK has entered an implementation period, during which it continues to be subject to EU law. References to exit day in many Brexit SIs are to be read as reference to IP completion day (Implementation Period completion day, defined in clause 39 as 31 December 2020 at 11.00 pm) (unless that provision is expressly disapplied by the SI in question). For further details, see News Analysis: Brexit—impact of the Withdrawal Agreement and European Union (Withdrawal Agreement) Act 2020 for R&I lawyers and Brexit Bulletin—key updates, research tips and resources. For further details on the impact on the Recast Regulation on Insolvency, see Practice Note: Brexit—impact on Recast Regulation on Insolvency.

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

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