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Welcome / Blog Archive / English / 2019-08-doc2a Scheme of arrangement – who is the foreign representative (+ text)

2019-08-doc2a Scheme of arrangement – who is the foreign representative (+ text)


In the matter of Syncreon Group B.V. (and ors) the English High Court on 31 July 2019 ([2019] EWHC 2068 (Ch)) (see my blog of yesterday at blog/2019-08-doc1-scheme-of-arrangement-does-english-court-has-jurisdiction-re-dutch-b.v) a final matter for Falk J to decide relates to the question who will act as the foreign representative. The parties requested the judge to include in the order to be given a declaration that an officer of the Scheme of Arrangement companies was their appointed ‘foreign representative’ for the purposes of any proceedings commenced in the United States under Chapter 15 or in Canada under the Canadian Companies’ Creditors Arrangement Act.

In general, I would submit that where Syncreon is a Dutch company the question whether a person is validly appointed to act for the company will be governed by the law of the place of the company’s incorporation, i.e. Dutch law. Has, in the case at hand, the person in question been validly appointed by the directors of the Dutch company to represent it and act as its agent in seeking relief available to a foreign representative?

Falk J shares the view of Snowden J expressed in Re Noble Group Ltd [2018] EWHC 2911 (Ch), at [107]. A person appointed by the company in relation to the a Scheme does not have the status of an office-holder under the English Insolvency Act 1986, nor that of an officer of the English court. A court will not intend in any way to prejudge the question of whether such person qualify as a ‘foreign representative’ under Chapter 15 or the CCAA. This is entirely a matter for those foreign courts.