Re Bank of Credit and Commerce International SA ((in Liquidation)) (No. 11)
Jurisdiction | England & Wales |
Judgment Date | 06 August 1996 |
Date | 06 August 1996 |
Court | Chancery Division |
Insolvency - Winding up - Set-off - Principal liquidation in foreign country of incorporation - Ancillary liquidation in England - Mutual set-off allowed by English law but not by foreign law - Whether English liquidators to retain funds to satisfy set-off in English liquidation - Whether jurisdiction to disapply set-off rule -
The bank, which transacted a large part of its business in the United Kingdom and which formed part of an international group carrying on banking business through branches in 75 countries, went into liquidation in Luxembourg, the country of its incorporation. Ten days later an order was made in England that the bank be wound up by the English court under the
On the application of the English liquidators for directions whether, before releasing the funds to the Luxembourg liquidators, they should retain sufficient funds to satisfy debtors and creditors entitled to take advantage of any set-off available to them under rule 4.90:—
Held, that where a foreign company was in liquidation in its country of incorporation, any winding up in England would be ancillary thereto; that the functions of the ancillary liquidators were to realise the English assets, to settle a list of English creditors and to transmit the assets and the list to the principal liquidators to enable a dividend to be declared and paid; but that the ancillary nature of such an English winding up did not relieve the English court of the obligation to apply English insolvency law to the resolution of any issue arising in the winding up in the English court; that there was no power to disapply rule 4.90 of the Insolvency Rules 1986 regarding set-off or any other substantive rule forming part of the statutory scheme under the
The following cases are referred to in the judgment:
Alfred Shaw & Co. Ltd., In re, Ex parte Mackenzie (
Commercial Bank of South Australia, In re (
English, Scottish, and Australian Chartered Bank, In re [
Federal Bank of Australia Ltd., In re (
Felixstowe Dock & Railway Co. v. United States Lines Inc. [
Fitzgerald v. Williams [
Hibernian Merchants Ltd., In re [
North Australian Territory Co. Ltd. v. Goldsbrough Mort and Co. Ltd. (
Queensland Mercantile Agency Co. Ltd., In re (
Sedgwick Collins and Co. v. Rossia Insurance Co. of Petrograd [
Stein v. Blake [
Suidair International Airways Ltd., In re [
Vocalion (Foreign) Ltd., In re [
The following additional cases were cited in argument:
Abidin Daver, The [
Aectra Refining and Manufacturing Inc. v. Exmar N.V. [
African Farms Ltd., In re (
Alabama, New Orleans, Texas and Pacific Junction Railway Co., In re [
Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. [
Aratra Potato Co. Ltd. v. Egyptian Navigation Co. [
Australian Federal Life and General Assurance Co. Ltd., In re [
Baden v. Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France S.A. (Note) [
Banco de Portugal v. Waddell (
Bank of Credit and Commerce International S.A., In re [
Bank of Credit and Commerce International S.A., In re [
Bank of Credit and Commerce International S.A. (No. 2), In re [
Bank of Credit and Commerce International S.A. (No. 3), In re [
Bank of Credit and Commerce International S.A. (No. 8), In re [
Bankers Trust International Ltd. v. Todd Shipyards Corporation [
Banque des Marchands de Moscou (Koupetschesky) v. Kindersley, In re [
Banque Indosuez S.A. v. Ferromet Resources Inc. [
Blain, Ex parte; In re Sawers (
Clark v. Oceanic Contractors Inc. [
Commercial Bank of India, In re (
Compania Merabello San Nicholas S.A., In re [
Company (No. 00359 of 1987), In re A [
Continental Bank N.A. v. Aeakos Compania Naviera S.A. [
Gibbs (Antony) & Sons v. La Société Industrielle et Commerciale des Métaux (
Halesowen Presswork & Assemblies Ltd. v. National Westminster Bank Ltd. [
Halifax Building Society v. Registry of Friendly Societies [
Hanak v. Green [
Harbour Assurance Co. (U.K.) Ltd. v. Kansa General International Insurance Co. Ltd. [
I.T.T., In re (
International Tin Council, In re [
Jabbour (F. & K.) v. Custodian of Israeli Absentee Property [
Jarvis Conklin Mortgage Co., In re (
Joachimson (N.) v. Swiss Bank Corporation [
Kloebe, In re; Kannreuther v. Geiselbrecht (
Kwok v. Commissioner of Estate Duty [
Levasseur v. Mason and Barry Ltd. (
Libyan Arab Foreign Bank v. Bankers Trust Co. [
Macfadyen (P.) & Co., In re; Ex parte Vizianagaram Co. Ltd. [
Mackinnon v. Donaldson, Lufkin and Jenrette Securities Corporation [
Matheson Bros. Ltd., In re (
Melbourn, Ex parte; In re Melbourn (
Mersey Steel and Iron Co. v. Naylor, Benzon & Co. (
N.F.U. Development Trust Ltd., In re [
National Bank of Greece & Athens S.A. v. Metliss [
National Benefit Assurance Co., In re [
New York Life Insurance Co. v. Public Trustee [
New Zealand Loan and Mercantile Agency Co. Ltd. v. Morrison [
Oriental Inland Steam Co., In re; Ex parte Scinde Railway Co. (
Paramount Airways Ltd., In re [
Real Estate Development Co., In re [
Rolls Razor Ltd. v. Cox [
Rossano v. Manufacturers' Life Assurance Co. [
Russian Bank for Foreign Trade, In re [
Sefel Geophysical Ltd., In re (
Smith v. Buchanan (
Sovereign Life Assurance Co. v. Dodd [
Spiliada Maritime Corporation v. Cansulex Ltd. [
Standard Insurance Co. Ltd., In re [
Union Theatres Ltd., In re (
Application
The English liquidators of the Bank of Credit and Commerce International S.A. (“B.C.C.I.”) applied for directions, inter alia, that prior to (a) the English liquidators transmitting to the Luxembourg liquidators the proceeds of the realisations of B.C.C.I. property (as defined in the pooling agreement) now or hereafter held by the English...
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