The Extra‐Territoriality of the Statutory Stay in an English Administration – Revisited

• DOI: http://doi.org/10.1002/iir.1237
• Date: 01 June 2015
• Published date: 01 June 2015
• Author: Hamish Anderson

The Extra-Territoriality

of the Statutory Stay in an English

Administration –Revisited

Hamish Anderson

1,2,3

*

1

Norton Rose Fulbright LLP, London, UK

2

Visiting Professor, Nottingham Law School, Nottingham Trent University, Nottingham, UK

3

Visiting Fellow, Centre for Insolvency Law and Policy, Kingston University, Kingston, UK

Abstract

This note is written by way of an addendum to the author’s article on the extra-territorial

scopeofthestayimposedinanEnglishadministrationwhichwaspublishedinthisjour-

nal last year.

1

In that article, it was argued that the stay imposed in an English adminis-

tration should be treated by the English courts as applying without territorial limitation

but that the courts should nonetheless grant leave to proceed in other jurisdictions in any

case where there is no sufficient connection with England. The purpose of this note is to

reconsider the issue in the light of the decision of the Privy Council in Stichting Shell

Pensioenfonds v Krys

2

on anti-suit injunctions, where judgement was given some months

after publication of the original article. It is suggested that the decision in Shell as to the

circumstances in which an anti-suit injunction will be granted has significantly narrowed

the issue but that extra-territoriality would nonetheless still be a desirable development.

I. Extra-territoriality

To recap on the argument previously advanced, it was suggested that the tentative

conclusion of the Court of Appeal in Bloom v Harms Offshore AHT Taurus GmbH &

Co KG,

3

that the statutory stay in an English administration is subject to a territorial

limitation, is not binding and should not be followed.

4

It was recognised that this

*E-mail: hamish.anderson@nortonrosefulbright.com

1. The Extra-Territoriality of the Statutory Stay in an En-

glish Administration. Int Insolv Rev, Vol 23: 40–56 (2014).

2. [2015] AC 616 (PC).

3. [2010] Ch 187 (CA).

4. The decision of the High Court of the Hong Kong Spe-

cial Administrative Region, Court of First Instance, in Joint

Administrators of African Minerals Limited v Madison PacificTrust

Limited & Anor (unreported, 16 April 2015) marks a minor

development in the substantive extra-territoriality issue,

which was the subject of the previous article. In African

Minerals, the Hong Kong court considered an application

foranorderinaidofanEnglishadministration(supported

by a letter of request from the English High Court) staying

security enforcement ‘pending the final determination [by

the English High Court] of the question whether the mor-

atorium set out in paragraph 43(2) of Schedule B1 to the

English Insolvency Act 1986 applies extra-territorially…’.

The Hong Kong court refused to make the order sought

on the ground that to do so would amount to an impermis-

sible extension of its common law power to recognise and

assist foreign insolvency proceedings.

Copyright © 2015 INSOL International and John Wiley & Sons, Ltd Int. Insolv. Rev., Vol. 24: 165–170 (2015)

Published online 22 June 2015 in Wiley Online Library

(wileyonlinelibrary.com). DOI: 10.1002/iir.1237