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Cross-Border Fraud and Cross-Border Insolvency: Proving COMI and Seeking Recognition under the UK Model Law

Journal of International Banking and Financial Law, Vol. 24, No. 9, p. 537, 2009

20 Pages Posted: 30 Oct 2009  

Look Chan Ho

Freshfields Bruckhaus Deringer LLP

Date Written: October 29, 2009

Abstract

In explaining the concept of centre of main interests (COMI) within the UK Cross-Border Insolvency Regulations 2006 (CBIR), the Englush court in Re Stanford International Bank over-emphasised third-party ascertainability due to an apparent lack of appreciation of the different functions performed by the COMI concept under the CBIR and the EC Insolvency Regulation.

In cases of fraud, the court’s approach to the COMI presumption risks the court concreting the fraudsters’ house of cards.

The Stanford decision also unnecessarily jars with case-law under Chapter 15 of the US Bankruptcy Code.

Keywords: UNCITRAL Model on Cross-Border Insolvency, Chapter 15 of the US Bankruptcy Code, UK Cross-Border Insolvency Regulations 2006, centre of main interests, UK Cross-Border Insolvency Regulations 2006, recognition of US receivership, fraud, Ponzi scheme

JEL Classification: K10, K19, K20, K22, K29, K30, K33, K39, K40, K49

Suggested Citation

Ho, Look Chan, Cross-Border Fraud and Cross-Border Insolvency: Proving COMI and Seeking Recognition under the UK Model Law (October 29, 2009). Journal of International Banking and Financial Law, Vol. 24, No. 9, p. 537, 2009. Available at SSRN: https://ssrn.com/abstract=1496590

Look Chan Ho (Contact Author)

Freshfields Bruckhaus Deringer LLP ( email )

65 Fleet Street
London EC4Y 1HS
United Kingdom
+44 20 7936 4000 (Phone)
+44 20 7108 2089 (Fax)

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