Enforcing Foreign Insolvency Judgments: New Cap Re
Corporate Rescue and Insolvency, Vol. 26, No. 4, p. 157, 2011
33 Pages Posted: 28 Nov 2011
Date Written: November 27, 2011
(i) This article argues that the enforcement in New Cap Reinsurance Corporation v Grant of an Australian insolvency judgment is correct, although several aspects of the decision call for revision, in particular the unquestioning acceptance of Rubin v Eurofinance being binding.
(ii) The Court of Appeal in New Cap Reinsurance Corporation v Grant missed a golden opportunity to depart from Rubin v Eurofinance.
(iii) The Foreign Judgments (Reciprocal Enforcement) Act 1933 applies to foreign insolvency judgments.
(iv) Section 426 of the Insolvency Act 1986 may ordinarily lead to enforcement of to foreign insolvency judgments.
(v) The 1933 Act (where applicable) bars common law enforcement of foreign insolvency judgments.
(vi) The 1933 Act should also bar enforcement of foreign insolvency judgments under s 426, and the Court of Appeal was mistaken in concluding otherwise.
Keywords: Cross-border insolvency, common law regime, enforcement of foreign insolvency judgments, enforcement of Australian judgment in England
JEL Classification: K10, K12, K19, K20, K29, K30, K33, K39, K40, K40, K41, K42, K49
Suggested Citation: Suggested Citation