Cross-Border Fraud and Cross-Border Insolvency: Proving COMI and Seeking Recognition under the UK Model Law
Look Chan Ho
Freshfields Bruckhaus Deringer LLP
October 29, 2009
Journal of International Banking and Financial Law, Vol. 24, No. 9, p. 537, 2009
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.
Number of Pages in PDF File: 20
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
Date posted: October 30, 2009