The U.K. Government has issued guidance on the prospect of a “no deal” Brexit, including the possible future of the cross-border European restructuring and insolvency landscape. In this alert, we consider the potential practical implications of this scenario. 

A “no deal” Brexit would negatively impact the U.K.’s restructuring and insolvency framework

Key takeaways for a “no deal” Brexit

• There is a significant risk that U.K. insolvency proceedings and schemes of arrangement would not be recognised in other E.U. countries
• The E.U. Insolvency Regulation would be repealed in the U.K.
• U.K. courts may recognise E.U. insolvency procedures via the Cross-Border Insolvency Regulations 
  • But such recognition would require a court application and — critically — would be unlikely to recognise the compromise of dissenting creditors’ English law-governed claims (unless such creditors were present in the foreign jurisdiction or had submitted to the foreign proceedings)
• E.U. restrictions on opening U.K. proceedings in respect of E.U. companies would no longer apply
• U.S. recognition of U.K. proceedings (and vice versa) would remain unchanged

A “no deal” Brexit would negatively impact the U.K.’s restructuring and insolvency framework, the force of which depends, in part, on its pan-European reach. Losing the ability to deal with insolvencies via a single process, with automatic recognition across the E.U., would make it more complex, lengthy and expensive to resolve cross-border mandates, with the prospect of parallel proceedings. 

The announcement serves as a sharp reminder of the harsh reality of a “no deal” Brexit for our market. 

This would jeopardise the prospect of rescue and reduce returns for stakeholders —  and undermine the U.K.’s status as a leading global restructuring hub. 

We —  like the U.K. government —  hope for a post-Brexit agreement that reflects the principles of mutual co-operation enshrined in the current E.U. framework.

Bracing for potential impact of “no deal” Brexit

The U.K. and the E.U. are stepping up preparations for a possible “no deal” Brexit. (The U.K. is scheduled to leave the E.U. on March 29, 2019; it is yet to be determined what kind of deal or transition arrangements —  if any — will be reached.)

There is a significant risk that U.K. insolvency proceedings and schemes of arrangement would not be recognised in other E.U. countries. 

The U.K Government has announced that, in a “no deal” scenario:

• the majority of the E.U. Insolvency Regulation — which covers the jurisdictional rules, applicable law and recognition of cross-border insolvency proceedings —  would be repealed in all parts of the U.K.; 
• the U.K. would retain the E.U. rules that provide for the U.K. courts to have jurisdiction where a company or individual is based in the U.K., and the law would ensure that insolvency proceedings could continue to be opened in those circumstances;
• the U.K. would retain the E.U. rules that provide for the U.K. courts to have jurisdiction where a company or individual is based in the U.K., and the law would ensure that insolvency proceedings could continue to be opened in those circumstances;
• U.K. insolvency practitioners would need to make applications under an E.U. country’s domestic law in order to have U.K. orders recognised there.

The announcement contains little that was not already known or obvious, but serves as a sharp reminder of the harsh reality of a “no deal” Brexit for our market. 

The scenarios below demonstrate the potential practical implications of the latest announcement. Of course, these are only brief, illustrative summaries regarding a highly complex and uncertain area of law; they are not a substitute for definitive advice.

“Inbound” recognition of European processes in the U.K.

In a nutshell: U.K. courts would continue to recognise European insolvency proceedings, though only upon application and with greater discretion as to the relief to be granted to the foreign insolvency officeholder.¹ As the law presently stands, the U.K. courts would not recognise a purported compromise or release of English law debt pursuant to foreign proceedings.²

Scenario 1

A distressed French company has its centre of main interests (CoMI) in France. Certain of its debt is governed by English law. The company opens French accelerated financial safeguard proceedings to amend and extend its existing financing arrangements.

Currently: The French insolvency proceedings would automatically be recognised in the U.K. under the E.U. Insolvency Regulation. This includes the amendment of the English law debt.³

In a “hard Brexit” scenario: The French proceedings should be recognised via a court application under the U.K. Cross-Border Insolvency Regulations (CBIR), which implement the UNCITRAL Model Law on Cross-Border Insolvency. 

In a potential application by an appointed foreign representative for recognition of the French proceedings under the CBIR: 

• the French proceedings would benefit from a limited stay on proceedings against the debtor or its assets;⁴ and
• the English court might grant additional appropriate (discretionary) relief. 

However, creditors with debt governed by English law would not be bound by the purported compromise under the French proceedings, unless they were present in France at the time the French proceedings were initiated, were a claimant or counterclaimant in those proceedings, or voluntarily submitted to the French court’s jurisdiction by appearing voluntarily or by agreement.

Compromise of French law-governed claims within the French proceedings would be likely to be recognised by an English court.⁵

This raises a prospective imbalance between U.K. “inbound” recognition of E.U. proceedings and E.U. recognition of U.K. “outbound” proceedings. 

“Outbound” recognition of U.K. processes in Europe

In a nutshell: There is a significant risk that U.K. insolvency proceedings and schemes of arrangement would not be recognised in other E.U. countries. Their ability to be recognised would depend upon European conflict of law rules. Only a small minority of E.U. countries have implemented the UNCITRAL Model Law on Cross-Border Insolvency.⁶

Scenario 2

An English company, with its CoMI in England, sells its business and assets to a creditor-owned Newco via (English) pre-pack administration. Certain of its direct subsidiaries and other assets are located in Germany. 

Currently: The administration would automatically be recognised in Germany (including the transfer of the company’s German subsidiaries and other assets
to Newco).

In a “hard Brexit” scenario: The English administration would not automatically be recognised in Germany via the E.U. Insolvency Regulation. Encouragingly, however, the proceedings ought to be recognised automatically under German conflict of law rules,⁷ based on the fact that the company’s CoMI is in the U.K.⁸ (If the company’s CoMI were outside the U.K., the pre-pack would not be recognised in Germany.) There would remain a risk of parallel proceedings being opened in Germany, in respect of assets located in Germany; this contrasts with the current position under the E.U. Insolvency Regulation.⁹

Happily, even a hard Brexit looks unlikely to make a difference from the perspective of U.S. cross-border insolvency.

The prospect of recognition of the pre-pack would be far less certain if recognition were sought in certain other E.U. jurisdictions. In certain circumstances, some E.U. countries may not recognise U.K. insolvency proceedings, for example if that would prevent creditors from taking action against the assets held in that country. Recognition would be more likely in those countries which have implemented the UNCITRAL Model Law on Cross-Border Insolvency and those countries with domestic provisions influenced by the Model Law, such as Germany. 

This raises a prospective imbalance between U.K. “inbound” recognition of E.U. proceedings and E.U. recognition of U.K. “outbound” proceedings. The prospects of successfully obtaining recognition for a U.K. insolvency proceeding in an E.U. country would need to be carefully considered in each case.

Scenario 3

A Dutch company, with its CoMI in the Netherlands, pursues an English scheme of arrangement to amend and extend its English law-governed facility agreement

Currently: The scheme would likely be recognised in the Netherlands, pursuant to the E.U. Judgments Regulation (a.k.a. the Brussels Ia Regulation),¹⁰ Dutch domestic private international law or (possibly) the Rome I Regulation.

In a “hard Brexit” scenario: It is likely — but far from certain — that the scheme would be recognised in the Netherlands, based on the Brussels Convention,¹¹ Dutch domestic private international law and/or (arguably) the Rome I Regulation. If the facility agreement provides for the exclusive jurisdiction of the English courts, then recognition might also be afforded under the Hague Convention on Choice of Court Agreements, which the U.K. government has announced it would seek to rejoin in the event of “no deal”.¹²

Side note — jurisdiction to open U.K. proceedings

The E.U. Insolvency Regulation operates as a constraint on the ability to open U.K. proceedings in respect of a company with its CoMI in another E.U. member state. As this constraint on jurisdiction is set to be repealed, this opens the possibility of (non-main) U.K. insolvency proceedings being opened in respect of E.U. companies without the need for a CoMI shift. This potentially includes the U.K.’s new restructuring plan procedure, to be introduced as soon as parliamentary time permits; see our previous alert. 

This means the full range of U.K. insolvency proceedings may be opened up to foreign companies, subject to some requirement for a “sufficient connection” to the U.K.¹³

However, this remains subject to the difficult question of whether such proceedings would receive the requisite recognition in other E.U. jurisdictions, as explored above.

Scenario 4

An English company pursues an English scheme of arrangement to effect a debt-for-equity swap in respect of its New York law-governed high-yield notes.

Currently: The scheme would likely be afforded recognition in the U.S. pursuant to an application under Chapter 15 of the Bankruptcy Code. This includes recognition of the compromise of the New York law-governed notes.

In a “hard Brexit” scenario: The scheme and its effects would be recognised in the same way as at present. Happily, even a hard Brexit looks unlikely to make a difference from the perspective of U.S. cross-border insolvency.

Read the U.K. Government’s announcement.

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^{1. The English court will generally grant the relief that would be available to an English insolvency practitioner.↩}

^{2. This position may change, (a) if the U.K. implements the forthcoming UNCITRAL Model Law on recognition and enforcement of insolvency-related judgments, as expected and (b) depending on the outcome of a major case pending in the English courts.↩}

^{3. Strictly, this point is not beyond doubt, but is considered the better interpretation.↩}

^{4. As the company’s CoMI is in France, the French proceedings would constitute “main proceedings” under the CBIR and therefore be eligible for more extensive relief than that available for “non-main” proceedings (for which relief is discretionary).↩}

^{5. This is partly based on the Rome I Regulation (on the law applicable to contractual obligations), which applies to non-member states and which the U.K. government intends to retain even in a “no deal” scenario.↩}

^{6. Namely Greece, Poland, Romania and Slovenia, in addition to the U.K.↩}

^{7. Specifically, pursuant to section 343(1) of the Insolvenzordnung.↩}

^{8. German courts would however have discretion to scrutinise whether the rules of the pre-pack administration comply with German public policy; this contrasts with the position under the E.U. Insolvency Regulation.↩}

^{9. A creditor could ask the German court to commence territorial insolvency proceedings (Partikularinsolvenzverfahren) in respect of assets located in Germany if the creditor is able to demonstrate a legitimate interest, e.g. if the English proceedings provide for a significantly worse outcome for that creditor than German proceedings.  This applies even if the company does not have a branch in Germany.↩}

^{10. The Brussels Ia Regulation would be repealed in a “hard Brexit” scenario, according to the U.K. government’s recent announcement.↩}

^{11. The Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters remains in place; both the U.K. and the Netherlands are contracting parties. ↩}

^{12. The U.K. currently participates in the Hague Convention based on its E.U. membership. The U.K.’s independent accession to the Hague Convention is not guaranteed.↩}

^{13. The requirement for a “sufficient connection” already applies to schemes of arrangement and liquidation, but could be extended to administration and company voluntary arrangements. ↩}