Re Swissair [2009] EWHC 2099 (Ch) (06 August 2009) - a challenge

10 AUG 2009

Mr Justice David Richards has handed down his judgment in Re Swissair [2009] EWHC 2099 (Ch) (06 August 2009). The case concerns cross-border insolvency issues and contains a lengthy discussion of the HIH decision. A flavour can be garnered from the following passage:

"In my judgment, there is nothing in the speeches in Re HIH which calls into question the long-established principle that the court possesses power to order the remittal of assets to a foreign liquidation where the local law provides for a pari passu distribution. Clearly Lord Hoffmann and Lord Walker did not question it, but considered that the jurisdiction was not qualified by reference to the basis of distribution in the foreign liquidation. Likewise, in my view, Lord Scott and Lord Neuberger did not question it, but, rather, re-affirmed it...I am satisfied that the court has the power to order the remittal of the assets realised by the English liquidators to the Swiss liquidator, and that it would be appropriate to do so in this case."

The case throws down an interesting challenge to those who mine in the dark corners of the history of the subject. The judge notes, "The submissions made in this case as regards the differing views expressed by the House of Lords in Re HIH go to an issue of some importance and interest, particularly as to the limits on a universalist approach to cross-border insolvencies. The need to choose between those views does not arise in this case nor will it arise until a direction is sought for a remittal of assets from a liquidator in England to a foreign liquidation in which they will not be distributed on a pari passu basis. So far as anyone has discovered, no such direction had been sought in the United Kingdom or any Commonwealth country from the early days of corporate insolvency in the nineteenth century until 2005 when it arose in HIH."

Can anyone find an authority to the contrary?

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