East-West Logistics LLP v Melars Group Limited

This is an appeal by East-West Logistics LLP (the “Petitioner”) against a decision of Mr. Justice Miles given on 28 May 2021: see [2021] EWHC 1523 (Ch). Miles J allowed an appeal against a decision of Deputy ICC Judge Baister (“Judge Baister”) who had made a compulsory winding up order in respect of Melars Group Limited (the “Company”): see [2020] EWHC 2090 (Ch).

The appeal concerns Article 3(1) of the Recast EU Regulation on Insolvency Proceedings 2015/848 (the “EU Regulation”) which relates to the centre of main interests (“COMI”) of a company.

Article 3(1) of the EU Regulation provides,

The Company was incorporated in the British Virgin Islands (“BVI”) on 11 January 2005 and traded in oil and petroleum. It entered into a charterparty with the Petitioner in December 2011 for a shipment to Turkmenistan. The address of the Company in the charterparty was stated to be in the BVI. The charterparty contained a clause providing for disputes to be resolved by arbitration in London under English law.

The Petitioner claimed that the Company breached the charterparty after its buyer refused to take delivery and the cargo was rerouted to Russia. The Petitioner commenced LCIA arbitration proceedings in London in 2012 claiming demurrage. The Company instructed solicitors in London and disputed the jurisdiction of the LCIA on the basis that the charterparty did not cover the second part of the journey to Russia. It would seem that this challenge was successful and the arbitration did not proceed.

Subsequently, in October 2015, the Petitioner brought a claim for the demurrage against the Company in the courts of the BVI and obtained a judgment in default of acknowledgement of service in November 2015.

Without notifying the Petitioner, the Company then moved its place of incorporation, and hence its registered office, to Malta. The Company obtained a provisional certificate of continuation from the Registrar of Companies in Malta on 10 December 2015 and a certificate of discontinuance from the BVI Registrar of Companies on 11 January 2016.

On 18 February 2016, still not having disclosed to the Petitioner that it had moved its place of incorporation and registered office to Malta, the Company succeeded in an application to set aside the BVI judgment in default. The Company then sought to challenge the jurisdiction of the BVI court on the basis of the arbitration clause in the charterparty. However, the Petitioner then obtained a second judgment in default of defence in the BVI on 16 March 2016, and the Company’s jurisdiction challenge was subsequently dismissed. In June 2016 the BVI court assessed damages, together with interest and costs, in a total of US$657,839.18.

After obtaining its second default judgment, the Petitioner sent a letter demanding payment to the Company at its previous address in the BVI, threatening winding up proceedings in the BVI if the debt was not paid. When payment was not made, the Petitioner sought to serve a statutory demand upon the Company in the BVI, whereupon it discovered that the Company was no longer incorporated in the BVI and did not have its registered office there.

On 19 July 2016 the Petitioner presented a winding up petition in London based upon its BVI judgment debt (the “Petition”). The Petition alleged that the COMI of the Company was in the United Kingdom and that it was not at the place of the Company’s new registered office in Malta.

In the Petition, the Petitioner relied upon the following factors in support of its contention that the Company’s COMI was in the United Kingdom,

The Petitioner contended that the Company’s COMI was not in Malta because,

The evidence filed by the Company in opposition to the Petition stated that prior to presentation of the Petition it had moved its registered office to a different address in Malta, and that in addition to a Swiss national, it had, since moving its place of incorporation and registered office to Malta, appointed two other directors who were Estonian nationals. The Company’s evidence also stated that at the time of presentation of the Petition in 2016 it had operated two bank accounts in Geneva, Switzerland, and that after the Petition had been presented, in 2018 it opened an account with a digital payment service (Revolut) based in London. It asserted that the use of English law governed contracts with English arbitration clauses to which the Petitioner had referred had been at the insistence of its counterparties. The Company did not give any further substantive detail of its operations.

The Petition was heard by Judge Baister on 16 July 2020. On 4 August 2020 he handed down a reserved judgment and made a winding up order.

In his judgment, Judge Baister quoted the relevant parts of the EU Regulation and extracts from a number of decisions, including the decisions of the CJEU in re Eurofood IFSC [2006] ECR I-3813, [2006] Ch 508 (“Eurofood”) and Interedil Srl v Fallimento Interedil Srl [2011] ECR I-9915, [2012] Bus LR 1582 (“Interedil”).

Article 3(1) of the EU Regulation is set out above. The relevant parts of the Preamble to the EU Regulation that were referred to by Judge Baister are Recitals (27) - (32),

The key paragraphs from Eurofood (a case decided under the first EC Insolvency Regulation 1346/2000) are paragraphs [31]-[36],

The key paragraphs from Interedil (also decided under the first EC Insolvency Regulation) are paragraphs [47] - [53],

Judge Baister also referred to the decision of the Court of Appeal in Shierson v Vlieland-Boddy [2005] EWCA Civ 974, [2005] 1 WLR 3966. That was a case in which a bankrupt had moved from the UK to Spain before presentation of a bankruptcy petition in England. Judge Baister summarised the judgment of Chadwick LJ as follows,

Having referred to these cases, Judge Baister then indicated that he regarded much of the case law as being of little assistance because it dealt largely with companies that had a physical presence such as headquarters, offices, tangible assets or staff, whereas the Company “traded virtually rather than physically”. He then outlined his approach to the facts of the case, indicating that he regarded the case as one of forum shopping,

Judge Baister also commented that this was a case in which it was difficult to undertake a comprehensive assessment of the factors going to the location of the Company’s COMI (as referred to in Interedil) because the evidence on both sides was unsatisfactory, with the content being “sparse”, and much evidence being second-hand hearsay given by solicitors. At [28], Judge Baister then remarked,

Having determined to adopt this approach, Judge Baister considered the various jurisdictions having some potential relevance to the case. He immediately eliminated the BVI and Estonia on the basis that neither party contended that the Company’s COMI was located in either jurisdiction. Judge Baister then also eliminated Malta on the following basis,

Judge Baister then analysed the evidence connecting the Company with the UK (England) or Switzerland, and concluded, at [54],

Judge Baister also then considered the question of the extent to which the factors to which he had referred were ascertainable by third parties. He stated, at [55],

Having thus determined that the Company’s COMI was in England, Judge Baister made a winding up order.

Judge Baister gave permission to appeal. As indicated above, the Company’s appeal was allowed by Miles J.

In his judgment, Miles J first set out the relevant legal framework from the EU Regulation and the relevant EU and English case law. In doing so, in addition to quoting the relevant parts of the EU Regulation and the decisions in Eurofood and Interedil set out above, he referred to the decisions of Lewison J (as he then was) and the Court of Appeal in Re Stanford International Bank [2009] EWHC 1441 (Ch), [2010] EWCA Civ 137, [2011] Ch 33 (“Stanford”), to which Judge Baister had not been referred. Miles J pointed out that in Stanford, Lewison J had accepted that his earlier views (expressed without the benefit of adversarial argument) in Lennox Holdings plc, upon which Judge Baister had relied, had been wrong, and this revised view had been confirmed by the Court of Appeal.

Miles J then summarised the principles of law which could be derived from the cases as follows,

Miles J then concluded that Judge Baister had erred in principle in three ways in his approach to the determination of the Company’s COMI. The first was in relation to the importance of the presumption in Article 3(1), the second was in relation to the concept of ascertainability, and the third was in failing to distinguish between matters of administration of the company’s interests and matters going to the operation of its business.

As to the presumption, Miles J held, at [65]-[67],

As to ascertainability, Miles J held, at [68]-[69],

As to distinguishing between administration and operation, Miles J held, at [71]-[72],

Having determined that Judge Baister had taken the wrong approach, Miles J redetermined the COMI of the Company de novo. He held that none of the factors relied upon by the Petitioner, whether considered individually or cumulatively, were sufficient to rebut the presumption that the COMI of the Company was in Malta as the place to which its registered office had been moved.

Miles J first reiterated, at [78]-[79], that the fact that the Company might have moved its registered office to delay winding up might have been relevant to the strength of the presumption and the weight of evidence needed to rebut it, but neither the fact of the move of the registered office, nor the absence of evidence of any actual activities of the Company in Malta were, without more, sufficient to rebut the presumption. At [80], he also agreed with Judge Baister that the domicile of the directors was of no weight.

Miles J then turned to the other factors relied upon by the Petitioner. At [84]-[86], Miles J observed that there was no suggestion that the Company’s contracts were actually to be performed in England. He also placed no weight on the fact that the Company’s contracts were in English, that they were governed by English law and that most of them contained provision for arbitration with its seat in England. He pointed out that the use of the English language and English law are commonplace in international trade contracts, and that London is a major international arbitration centre. He observed that many companies administered abroad use contracts containing such terms and that it would be surprising to them, and to their creditors, to be told that their COMI was in England.

Miles J then added, at [87],

Miles J reiterated this point when deciding that no great weight could be given to the fact that the charterparty between the Company and the Petitioner had referred, under the heading “place”, to London. Miles J pointed out that there had been no finding by Judge Baister that the charterparty had in fact been concluded in London, and stated, at [89],

Miles J then held, at [90], that the fact that the Company engaged lawyers in England to deal with an arbitral dispute in London was not evidence capable of rebutting the presumption. He described these factors as a necessary response to the proceedings brought by the Petitioner in London, and simply a feature of the operation of the Company’s commercial business. He then added,

At [91], Miles J held that no weight could be placed on the fact that the Company had opened a digital payment service with Revolut in London in December 2018. He pointed out that this was two years after the relevant date when the Petition was presented, and that the evidence was that the account had been set up to pay lawyers engaged in defending the Petition in London and in Malta. Apart from the question of timing, Miles J held that this was simply part of the operations of the business of the Company, rather than an indication of the place where its interests were being managed. He pointed out that if the location of bank accounts was relevant, it would be far more telling that the Company had two bank accounts in Geneva at the relevant time in 2016. Miles J also stated that there was no reason to think that typical third party creditors of the Company would have been aware of the location of the Revolut facility, or that its location would have indicated to them that its interests were being administered from the UK.

Finally, at [92], Miles J held that the location of the Petitioner as a creditor of the Company was a matter of happenstance not arising from non-performance of any contractual obligations to be performed in England, and just related to the particular debt owed to the Petitioner. He also observed, at [93],

In the result, Miles J held that the presumption created by the place of the registered office had not been rebutted by any matters that would have been ascertainable by typical third party creditors, and hence that the COMI of the Company was in Malta. He therefore allowed the appeal and set aside the winding up order.

On appeal, Mr. Levy KC, for the Petitioner, raised two arguments,

For the Company, Mr. Sheehan essentially submitted that Judge Baister was wrong, and Miles J was correct in his approach to the presumption under Article 3(1) for the reasons that he gave. He also submitted that Miles J’s approach and evaluative judgment of the various factors at the second stage was both correct in principle as regards the ascertainability point, and not properly open to challenge on appeal on the facts.

Judge Baister was right to state that under the EU Regulation, the court which is requested to open main insolvency proceedings must always seek to verify for itself that the debtor’s COMI is located in its jurisdiction. However, the process of determination of a corporate debtor’s COMI does not start from a blank sheet of paper. Except where the presumption in Article 3(1) is expressly disapplied because the debtor company has moved its registered office to another Member State of the EU within three months of the request to open insolvency proceedings, the effect of the presumption is that in every case the court must start its inquiry from the premise that the COMI of a corporate debtor is in the same place as the debtor’s registered office.

As indicated by Article 3(1) and by the CJEU in Interedil at [51], the question for the court is then whether that legal presumption is rebutted by “proof to the contrary” – i.e. evidence of factors which are both objective and ascertainable by third parties and which show that the debtor actually conducts the administration of its interests on a regular basis in a different location from the location of its registered office.

I agree with Miles J that, contrary to Judge Baister’s view, a lack of evidence that the debtor actually carries out any activities at the place of its registered office does not allow the court to ignore or disregard the legal presumption under Article 3(1). In contrast to cases where there has been a move of the registered office to another Member State within three months of the request to open proceedings, there is no exception in Article 3(1) for cases in which the evidence of actual administration of interests is sparse. Rather, what the court is entitled to do, as Miles J correctly stated in [58] of his judgment, is to treat the presumption that the COMI is the same place as the place of the debtor company’s registered office, as more easily rebutted if the evidence shows that no relevant acts of administration of the company’s interests are actually carried out at the place of the registered office, i.e. that the registered office is, in reality, no more than a “letter box”. But even in such a case, the presumption will still apply, and will not be displaced, unless there is sufficient contrary evidence of objective factors ascertainable by third parties to establish (prove) that the debtor actually conducts the administration of its interests on a regular basis in a different place from that of its registered office.

Judge Baister was of course right to say that the court must be alert to detect fraudulent or abusive forum shopping by purported changes of COMI by a debtor. In such cases, as the decision in Shierson indicated, “The question is whether the move is real or illusory.” Critically, however, the question in such cases is whether the move of COMI is real or illusory. It is not whether the move of the debtor’s registered office is real or illusory.

A company is an artificial legal person existing under the legal system of its place of incorporation, and its registered office is a legal concept, the place of which is necessarily determined by that same legal system. As such, and as Miles J pointed out in [57] – [58] and [66] of his judgment, the place in which a company is incorporated and has its registered office is a “real” fact which will inevitably give rise to the legal presumption under Article 3(1), unless that presumption is disapplied because the place of the registered office has been moved to another Member State within three months of the request to open insolvency proceedings.

In my judgment, therefore, Miles J was right to find that Judge Baister erred when he decided to conduct a comparison of the factors pointing to the various countries which he identified, but without starting from the presumption that the Company’s COMI was in Malta and asking whether the evidence of actual administration of interests in any other place was sufficient to displace that presumption.

It follows that Miles J was entitled to address the COMI question for himself de novo.

In paragraphs [68] –[70] of his judgment, Miles J rightly emphasised (and Mr. Levy did not dispute) the requirement which is evident in the EU Regulation and the case law, that the factors which can be relied upon to displace the Article 3(1) presumption must be both objective and ascertainable by third parties. The CJEU has emphasised that the requirements of objectivity and the possibility of ascertainment by third parties are necessary in order to ensure legal certainty and foreseeability concerning the determination of the court with jurisdiction to open main insolvency proceedings: see Eurofood at [33]-[34] and Interedil at [49].

The same points were reiterated in the more recent decisions of the CJEU in Leonmobili Srl v Homag Holzbearbeitungssysteme GmbH (Case C-353/15) EU:C:2016:374 (24 May 2016) (“Leonmobili”) at [33] and MH v OJ (Case C-253/19), [2021] 1 WLR 2498. Those cases were not cited to Miles J.

In MH v OJ, the CJEU stated, at [19]-[21],

Mr. Levy criticised Miles J for not giving full effect to the emphasis that the CJEU put on the interests and legitimate expectations of creditors. He contended that Miles J was wrong to disregard or place no weight upon factors that were actually known to individual creditors, because he had wrongly relied upon dicta in Stanford to the effect that factors were not relevant unless they were in the public domain and would have been apparent to a typical third party creditor doing business with the company without further enquiry.

So, for example, in addition to finding that the use of English law and dispute resolution clauses in most of the Company’s commercial contracts that were in evidence were not indicative of where the Company administered its interests, Miles J discounted these factors (at [87]) because,

Mr. Levy pointed out that the factual context and issue addressed in Stanford were very different from the instant case. Stanford concerned an application for recognition under the Cross-Border Insolvency Regulations 2006 (the “CBIR”) by the Antiguan liquidators of the Stanford International Bank (“SIB”). SIB was incorporated in Antigua where it had its registered office, a significant physical presence and operations, and where it presented its “public face” to investors and regulators. However, SIB was allegedly the vehicle for a fraudulent Ponzi scheme, orchestrated and directed “behind the scenes” by its eponymous founder and another individual based in the US. SIB had been ordered to be wound up by the court in Antigua, and the liquidators sought recognition in the UK under the CBIR on the basis that the COMI of SIB was in Antigua.

Recognition in the UK of the Antiguan liquidation was opposed by a receiver who had been appointed over SIB’s assets worldwide by a court in the US in the interests of the victims of the alleged fraud, most of whom were US citizens. The US receiver contended both that ascertainability was not a precondition to a factor being taken into account in the determination of COMI, and that in addition to factors that might be apparent to those doing business with the debtor company, the court could also take into account factors that would only be ascertained on investigation. So, said the receiver, in determining the COMI of SIB, the court could take into account that the real “interest” of SIB had been conducting the Ponzi scheme, and this had been directed and controlled from the US.

These contentions were rejected by Lewison J, whose decision was upheld by the Court of Appeal. In the course of his judgment, Lewison J concluded, at [70(vi)], that,

In the Court of Appeal, Sir Andrew Morritt C stated, at [56],

I entirely accept, for the reasons given by Morritt C in sub-paragraph [56(4)] of his judgment, that factors relating to a fraud which was deliberately concealed from third parties and which only became apparent as a result of subsequent investigation by the relevant authorities or insolvency officeholders, cannot possibly be relevant to a determination of the company’s COMI. In my view, in the context in which they were made, the references in the judgments in Stanford to matters being “in the public domain” were primarily intended as a contrast to such internal matters that were concealed from the view of any third parties dealing with the company.

The issue of whether it is essential that matters are in the public domain was also touched upon by the CJEU in Interedil - which post-dated Stanford – at [49],

Accordingly, I do not consider that Stanford should be taken to be authority for the proposition that matters that were known to or ascertainable at the relevant time by creditors should be excluded from consideration on the COMI question simply because they were not generally known or advertised to the public at large.

I also consider that, contrary to Miles J’s summary at [56], which was plainly based upon paragraph [56(3)] of Morritt C’s judgment in Stanford, when assessing COMI, the court should not invent a hypothetical “typical” third party creditor with “average” or “normal” characteristics, and form a view on what might (or might not) have been apparent to that creditor in the course of a notional dealing by him with the company. Neither the EU Regulation nor the jurisprudence of the CJEU refer to the concept of a “typical” creditor, but refer instead, and more generically, to “creditors” or “third parties”. Morritt C’s reference to a “typical” third party can be traced back to counsel’s submissions at first instance in Stanford, with which Lewison J had expressed general agreement (in paragraph [62])). However, and contrary to Morritt C’s summary in [56(3)], Lewison J’s own formulation of the test in [70(vi)] of his judgment did not employ the term.

Further, and differing in this respect from the view of Miles J in [87], I consider that the fact that the contractual terms upon which any one creditor dealt with the company would not be known or disclosed to other creditors in the ordinary course of their dealings with the company, should not mean that (if otherwise relevant) evidence of those terms should necessarily be excluded from consideration by the court on the basis that they would not be ascertainable on reasonable enquiry by other creditors (or a “typical” creditor).

The problem of adopting too restrictive a test in this regard can be illustrated by an example. Suppose that in the course of its business a debtor company entered into ten separate and bespoke commercial contracts with ten separate counterparties; that each contract was negotiated and signed by the same representative of the company in the same office; and that in each contract, the company identified the same person in the same office as being responsible for dealing with the counterparty in respect of all matters arising out of the contract.

From their individual viewpoints, each of the counterparties would have the same perception of where the company was administering its interests relevant to the dealing with them. Taken together, the facts in relation to the ten contracts would also indicate that the company was administering its interests in relation to the ten creditors concerned from the same place, and hence might be thought to be doing so on a regular basis. Assuming that the ten contracts represented a material proportion of the company’s commercial interests, it seems to me that on a straightforward reading of Article 3(1), those facts would plainly be relevant to the determination of its COMI.

In such a situation, however, it might well be that the individual creditors would not even know of the existence of the other counterparties and contracts, especially if the other contracts were entered into after theirs. Even if an individual creditor did know of the existence of (some) of the other contracts, they might not think it commercially relevant to enquire into the terms of those other contracts. And even if they did enquire, they might well be told by the company, entirely properly and for legitimate commercial reasons, that the terms on which the company was dealing with those other counterparties were confidential. All of the same points could be made in respect of a “typical” creditor – whether that be one of the actual creditors or some hypothetical construct.

On a narrow reading of Morritt C’s judgment in Stanford, the considerations set out in the last paragraph would lead to the evidence of the terms of the ten contracts being excluded from consideration on the question of the company’s COMI because none of the terms were either “public” at the relevant time, nor were they “ascertainable by a typical creditor” in the ordinary course of dealing with the company. In my view, that would not be a result intended by the framers of the EU Regulation, and it is not mandated by any of the decisions of the CJEU to which I have referred.

In its decisions, the CJEU has stressed that the limitation of relevant factors to those that are both objective and ascertainable by third parties is designed to ensure legal certainty and foreseeability, from the perspective of third parties, of the court which will have jurisdiction to open main insolvency proceedings in respect of their debtor. This is entirely understandable because insolvency is a foreseeable risk which persons proposing to deal with a company will wish to take into account when deciding whether, and at what price, to enter into a transaction. In that regard, the place in which main insolvency proceedings can be opened is important, because it will determine the applicable law governing a significant number of issues concerning the rights of creditors in the proceedings: see Article 7 of the EU Regulation. The CJEU has also made clear that focussing on the COMI question from the perspective of prospective creditors is designed to give effect to their legitimate expectations and to minimise the possibility of abusive moves of COMI by debtor companies to the detriment of creditors.

The common theme running through these statements of principle is that when determining the COMI, the court should look at the operations of a debtor company from the external (objective) perspective of third parties, rather than from the internal (subjective) perspective of the debtor company itself. But I see no warrant in any of the materials for an approach under which the court should be forced to disregard a factor that a third party actually ascertains from the course of his dealing with the company, which indicates to him where the debtor company is administering its interests, simply because other third parties who dealt with the company in the past or who might deal with it in the future, may not also know of it.

In my judgment, the issue of whether the facts ascertained by a particular creditor from its dealings with the debtor were indicative of dealings by creditors more generally should not go to admissibility, but to the weight to be attached by a court to the evidence. Depending on the facts, such evidence might, for example, throw some light on whether the company conducted the administration of its interests “on a regular basis” in the place indicated. I appreciate that it could be said that this approach might mean that a prospective creditor could not be certain in advance what weight will be attached to his perspective by a court: but the same problem arises in a more acute form if the creditor can have no assurance that what he actually knows will be taken into account at all in the determination of COMI unless he is ultimately found to be “typical” of others dealing with the company.

I also consider that evidence of a factor actually known to a creditor at the time of his dealings with the debtor company should be admissible on the COMI question irrespective of whether the evidence is adduced by the creditor concerned, or is adduced by a different creditor who only obtained the evidence of what the first knew at a later stage. That approach would, in my view, be consistent with Recital (32) to the EU Regulation.

Although Recital (32) does not seem to be reflected in any operative article of the EU Regulation, it clearly envisages that in a case of doubt, the court should require the debtor to submit additional evidence to support its assertions and, where the law applicable to the insolvency proceedings so allows, give the creditors the opportunity to present their views on the question of jurisdiction.

If the court were to require the debtor company to provide additional information, I see no reason why this could not include requiring the debtor to submit evidence of all its relevant contracts and dealings with creditors so as to permit the court to carry out the “comprehensive assessment of all relevant factors” referred to in the cases from the CJEU. By the same token, I see no reason why one creditor could not, if he were able to assemble relevant information as to how other creditors had dealt with the company prior to the request to open insolvency proceedings, be permitted for convenience to present the evidence of all their contracts and dealings together to the court. I stress, however, that as held in Stanford, this would not permit evidence to be adduced of factors that were unknown to any creditors dealing with the company at the relevant time, and were only discovered on a subsequent investigation.

Although, for the reasons that I have indicated, I do not agree with Miles J’s application of the dicta in Stanford as regards matters being in the public domain and ascertainable by a typical third party dealing with the company, his observations in that respect were not central to his decision on COMI. Instead, as I have indicated above, he went through each of the factors relied upon by the Petitioner, assessed their relevance and weight, and rejected the suggestion that, individually or collectively, they were sufficient to displace the presumption under Article 3(1) in favour of Malta. In these respects I do not think that Miles J’s analysis can be faulted.

Miles J was, for example, obviously right to hold at [85]-[86] that the fact that the Company entered into international commercial contracts with a variety of counterparties that were in the English language, were governed by English law, and had dispute resolution provisions for arbitration under English law in London says nothing about where the Company conducted the administration of its interests on a regular basis. English has been a preferred language of international commerce for generations and countless counterparties with their COMI in different jurisdictions choose English law and arbitration in London for a variety of reasons that have nothing to do with where they are based or have their COMI.

Miles J was also entirely right at [90] to place little or no weight upon the fact that arbitral proceedings were brought against the Company under English law in London, and that it instructed English lawyers to deal with such proceedings. Most international companies who were subjected to such litigation would do the same for obvious reasons of obtaining expert local legal advice and representation. The COMI of a company that trades in international commerce cannot sensibly depend on where in the world it might be subjected to legal proceedings from time to time.

Likewise, Miles J’s assessment in [91] that the Company’s use of a Revolut account opened in London in 2018 could not sensibly illuminate where the Company’s interests were being administered in July 2016 was obviously correct: and as he also pointed out, if the use of bank accounts could be relevant to the location of COMI, at the relevant time in 2016 the Company had accounts in Switzerland, not London.

I would also entirely agree with Miles J’s comments in [92] that the domicile of the Petitioner cannot logically be connected with where the Company administered its interests. As he pointed out at [93], it would only be if a very large proportion of the general body of creditors were domiciled in the same place that some inference might conceivably be drawn as to where a debtor company had been conducting the administration of its interests on a regular basis.

In my judgment, therefore, Miles J was correct to hold that none of the factors relied upon by the Petitioner were, individually or collectively, sufficient to establish that the Company actually conducted the administration of its interests on a regular basis in England (or any other particular location) so as to displace the presumption in favour of Malta under Article 3(1).

Although not part of Mr. Levy’s criticism of Miles J’s approach, I would finally, and only briefly, mention the distinction which Miles J drew, in [71] of his judgment, between matters that he regarded as “operations of a commercial business” and matters that were “administration of interests”. That categorisation may be a useful analytical tool in ensuring that undue weight is not given to business activities which a company may routinely, and of necessity, be required to carry out in various different jurisdictions. However, it should be treated with care. I do not think that it can be regarded as a bright-line distinction, it introduces concepts that are not to be found in the EU Regulation or in the decided cases, and I do not think that it should be regarded as a new test to be overlaid on the definition of COMI in Article 3(1).

For the reasons that I have given, I would dismiss this appeal.

I agree that the appeal should be dismissed for the reasons given by Snowden LJ.

I agree that the appeal should be dismissed for the reasons given by Snowden LJ.

It was unfortunate that Judge Baister was referred to my decision in Lennox Holdings and not to the decisions in Stanford International Bank. That may have led him down the wrong path.

I wish to add a few observations on what was decided in Stanford International Bank. In my judgment at first instance I set out the rival contentions at [62]:

It was the choice between those two alternatives that led me to the decision that I made (and, as I understand it, for this court to have approved that decision). I was certainly not intending to add to the large cast of hypothetical characters who people EU law (e.g. the average consumer, the diligent and reasonably well-informed tenderer etc). The essence of Mr. Levy’s argument was that the Company’s COMI should be decided in the light of everything that the Petitioner had discovered after the event. Since one of the reasons for requiring ascertainability by third parties is to promote legal certainty and predictability at the time when creditors do business with the company, I consider that his argument is wrong. The importance of predictability was emphasised by the court in both Leonmobili at [33] and MH v OJ at [20].

I do not consider that it is necessary to go any further in order to dispose of this appeal.