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Mrs Justice Proudman has handed down her decision in Pillar Securitisation SARL & Ors v Spicer & Anor (Court Administrators)  EWHC 836 (Ch). The case concerns the fallout from various bank insolvencies and the question of COMI in an administration context. The learned judge mulls on issues surrounding the validity of appointment of the administrator. As she observes:
"There are currently five applications before the court relating to the administration. First, there is the applicants' application. That raises the following issues:
In relation to COMI the learned judge noted:
"The first ground on which the applicants say that the appointment was bad relates to Master's COMI. The English Court may assert jurisdiction to open insolvency proceedings in respect of an entity outside England and Wales where the EC Council Regulation on Insolvency Proceedings (1346/2000/EC) applies and the entity's COMI is within England and Wales. The applicants assert that Master's COMI was Guernsey, which is not an EU Member State, so that the English Court has no jurisdiction in relation to the insolvency.
The English Court also has jurisdiction where it would, apart from the EC Regulation, have jurisdiction under domestic legislation. The applicable provision is Section 117 of the Insolvency Act 1986, as amended and applied to partnerships by the Insolvent Partnerships Order 1994. There is jurisdiction if Master has, or at any time has had, a principal place of business in England and Wales: section 117(1). Mr Todd QC asserted on behalf of the administrators that Master had "a" principal place of business in London, notwithstanding that it had another principal place of business elsewhere. This was to get round the fact that, in order to obtain registration as a limited partnership in Guernsey, Master had declared for the purposes of section 8(2)(d)(ii) of the 1995 Law, that its principal place of business was at an address in St Peter Port, Guernsey.
Mr Todd QC did not really pursue the argument under Section 117. The argument before me centered on Master's COMI. COMI is a separate matter from principal place of business, and in considering COMI, Mr Todd submitted that the court need not grapple with the inconsistency between the statement as to principal place of business under the 1995 Law and the contention that a principal place of business was in England.
The test for establishing COMI under the EC regulation was authoritatively stated by the ECJ in Re Eurofood IFSC Limited  BCLC 150, and recently explained, after analysis of the authorities, by the majority of the Court of Appeal in Re Stanford International Bank Limited  EWCA Civ 137. It is common ground in this case that the following principles fall to be applied:
- There is a presumption that the body's COMI is in the state where its registered office is located.
- The presumption can be rebutted only by factors which are both objective and ascertainable by third parties. Thus the court is to have regard to factors already in the public domain, or which would be apparent to a typical third party doing business with the body, excluding such matters as might only be ascertained on inquiry.
- Accordingly, the place where the body's head office functions are carried out is only relevant if so ascertainable by third parties.
- Each body or individual has its own COMI, there is no COMI constituted by an aggregation of bodies or individuals."
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