Quadrant Chambers Cross-Border Insolvency and ... 1 Foreword: Cross-Border Insolvency and International

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  • 1 Foreword: Cross-Border Insolvency and International Trade Luke Parsons QC

    2 Res Cogitans: A Sale Is Not Always a Sale, Says the Supreme Court Turlough Stone

    6 Whose Goods Are They Anyway? Simon Rainey QC

    13 Sale or No Sale? An Update on O.W. Bunkers Stephen Cogley QC and Turlough Stone

    17 Admiralty in rem Claims and Insolvency Law James M. Turner QC

    21 Insolvency and Anticipatory Breach of Bunker Supply Contracts: The ‘STX Mumbai’ Michael Davey QC

    25 The Hong Kong Court Looks at the ‘Sufficient Connection’ Test to Liquidate Foreign Registered Company Robert-Jan Temmink and Turlough Stone

    29 Recognition Applications under the Cross-Border Insolvency Regulations 2006: The Importance of Being Full and Frank Jeremy Richmond

    32 In Ras Al Khaimah Investment Authority and others v Bestfort Development Limited LLP (and 13 others) [2015] EWHC 3383 (Ch) Claudia Wilmot-Smith

    36 Applications to Modify Recognition Orders under Art. 20(6) of Sch. 1 to the Cross- Border Insolvency Regulations 2006 Christopher Jay

    International Corporate Rescue – Special Issue

    Quadrant Chambers

    Cross-Border Insolvency and International Trade

  • Editor-in-Chief Mark Fennessy, Proskauer Rose LLP, London

    Publisher Sasha Radoja, Travers Smith LLP, London

    Editorial Board Emanuella Agostinelli, Curtis, Mallet-Prevost, Colt & Mosle LLP, Milan Scott Atkins, Henry Davis York, Sydney Samantha Bewick, KPMG, London Geoff Carton-Kelly, FRP Advisory, London Gillian Carty, Shepherd and Wedderburn, Edinburgh Charlotte Cooke, South Square, London Sandie Corbett, Walkers, British Virgin Islands Ronald DeKoven, DeKoven Chambers, London Hon. Robert D. Drain, United States Bankruptcy Court, Southern District of New York Christopher Jarvinen, Berger Singerman, Miami Matthew Kersey, Russell McVeagh, Auckland Prof. Ioannis Kokkoris, Queen Mary, University of London Prof. John Lowry, University College London, London Neil Lupton, Walkers, Cayman Islands Lee Manning, Deloitte, London Ian McDonald, Mayer Brown International LLP, London Prof. Riz Mokal, UCL, London Mathew Newman, Ogier, Guernsey Karen O’Flynn, Clayton Utz, Sydney Prof. Rodrigo Olivares-Caminal, Queen Mary, University of London Christian Pilkington, White & Case LLP, London Susan Prevezer Q.C., Quinn Emanuel Urquhart Oliver & Hedges LLP, London Sandy Purcell, Houlihan Lokey Howard & Zukin, Chicago Prof. Philip Rawlings, Queen Mary, University of London Dr Arad Reisberg, Brunel University, London Jeremy Richmond, Quadrant Chambers, London Daniel Schwarzmann, PricewaterhouseCoopers, London The Hon. Mr Justice Richard Snowden Q.C., Royal Courts of Justice, London Anker Sørensen, De Gaulle Fleurance & Associés, Paris Kathleen Stephansen, New York Angela Swarbrick, Ernst & Young, London Dr Shinjiro Takagi, Frontier Management Inc., Tokyo Lloyd Tamlyn, South Square, London Stephen Taylor, Isonomy Limited, London Richard Tett, Freshfields, London William Trower Q.C., South Square, London Prof. Edward Tyler, The University of Hong Kong Mahesh Uttamchandani, The World Bank, Washington, DC Robert van Galen, NautaDutilh, Amsterdam Miguel Virgós, Uría & Menéndez, Madrid Maja Zerjal, Proskauer Rose, New York Dr Haizheng Zhang, Beijing Foreign Studies University, Beijing

    US Corner Editors: Ronald DeKoven, DeKoven Chambers, London Maja Zerjal, Proskauer, New York

    Economists’ Outlook Editors: Prof. Ioannis Kokkoris, Queen Mary, University of London Prof. Philip Rawlings, Queen Mary, University of London Kathleen Stephansen, New York Mahesh Uttamchandani, The World Bank, Washington, DC

    Case Review Section Editors: Charlotte Cooke, South Square, London Prof. John Lowry, University College London, London Dr Arad Reisberg, Brunel University, London

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    ISSN: 1572-4638

    © 2016 Chase Cambria Company (Publishing) Ltd

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  • 1

    Foreword: Cross-Border Insolvency and International Trade

    Luke Parsons QC, Head of Chambers, Quadrant Chambers, London, UK

    I am delighted to welcome you to the special Quadrant Chambers’ edition of International Corporate Rescue, which aims to focus a spotlight on some of the cutting edge cross-border insolvency issues with a particular emphasis on the commodities and shipping markets. The contents and width of the articles in this special edition evidences the increasing expertise of Quadrant Chambers in matters of cross-border insolvency as it impacts on our other traditional core practice areas such as international trade, commodities and shipping.

    Cross-border insolvency issues seldom arise in iso- lation. More often than not they raise complex issues of the laws of contract, property and bailment not to mention issues of maritime and private international law. Given its pedigree, Quadrant Chambers is perhaps uniquely well placed to deal with many cross-border insolvency issues that require expertise across all of these areas.

    OW Bunkers has possibly given rise to the most high profile commodities/insolvency litigation since the

    ‘Glencore’ saga of the late 1990s. It is no coincidence that Quadrant Chambers has been at the forefront of this litigation with Counsel from here representing Owners at all stages of the test case litigation ‘the Res Cogitans’ from the first arbitration all the way up to the Supreme Court. In addition, several members of Cham- bers have acted for physical suppliers in the myriad arbitrations that have arisen since the collapse of OW Bunkers in the Autumn of 2014.

    Quadrant Chambers’ expertise in cross-border in- solvency does not, however, stop at the OW Bunkers litigation. Members of Chambers have appeared in some of the leading cases on the Cross-Border Insolven- cy Regulations 2006 and the EU Insolvency Regulation 2000. Others have penned learned articles or authored books addressing these areas.

    I do hope you enjoy these articles and we, as a Cham- bers, look forward to advising and/or representing you in the future in this increasingly important and com- plex area.

  • 2

    Res Cogitans: A Sale Is Not Always a Sale, Says the Supreme Court

    Turlough Stone, Barrister, Quadrant Chambers, London, UK

    On 11 May 2016, the Supreme Court handed down its much-anticipated judgment in the case of PST Energy 7 Shipping LLC & Product Shipping and Trading S.A. v OW Bunker Malta Ltd & ING Bank N.V. [2016] UKSC 23 (the ‘Res Cogitans’). The Supreme Court unanimously rejected the appeal of PST Energy (Owners) from the decision of the Court of Appeal – see [2015] EWCA Civ 1058 – that bunker supply contracts, in which marine fuels (bunkers) are sold upon credit terms, with the seller retaining title until payment and the parties contemplating that the goods will (or are likely to) be consensually consumed prior to the time at which property is meant to pass under the contract, are not contracts for the sale of goods within the meaning of s.2(1) of the Brit