International Judicial Co-Operation

NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES (Talk at 5pm on 19 September 2016)

INTERNATIONAL JUDICIAL CO-OPERATION

“Once we saw issues and problems through the prism of a village or nation – state, especially if we were lawyers. Now we see the challenges of our time through the world’s eye”. (Michael Kirby Through the World’s Eye 2000).

“I am human and nothing human is foreign to me” (Roman poet Terentius quoted by Chief Justice Robert French in Sydney 21 April 2012 in Co-operation and Convergence – Judiciaries and the Profession available on the High Court of Australia website).

“No man is an island, Entire of itself, Every man is a piece of the continent, A part of the main.” (John Donne, Devotions Upon Emergent Occasions and its prose (1624) Meditation 17.)

“… on the principle of comity and reciprocity … in matters of bankruptcy … They [the courts in Demerara] were bound in justice to give equal effect to the certificate [of discharge granted in England] …” (The Privy Council in Odwin v Forbes (1817) 1 Buck.57)

1. Deemster Doyle in US Securities and Exchange Commission v Wyly and others (judgment 30 April 2012):

“Law and International Judicial Co-operation

20. In addition to considering the Application and the terms of the Letter of Request I considered the relevant law including the Evidence (Proceedings in Other Jurisdictions) Act 1975 as extended to the Isle of Man and also the developing jurisprudence in respect of this court’s co-operation with courts exercising jurisdiction in a country or territory outside the Isle of Man.

21. This court has assisted courts, insolvency officers and others from countries outside the Isle of Man when they have requested assistance in obtaining information and evidence in the Isle of Man especially in cases of alleged wrongdoing or insolvency.

22. In Impex Services Worldwide Limited 2003-05 MLR 115 this court assisted a provisional liquidator of an English company in obtaining documents relevant to the provisional liquidator’s investigation and in examining directors in the Isle of Man. At paragraph 52 of my judgment I stated:

“Here on the Isle of Man, we are all citizens of the Island but we are also citizens of the global community in which we live, work and contribute. We need to recognise our international as well as our local responsibilities. If the English High Court requires assistance then the Manx High Court, if it has jurisdiction and subject to any necessary safeguards, should not, in a proper case, be slow to provide such assistance.”

23. At paragraph 82 of my judgment in Impex Services Worldwide Limited I added:

“82. Friendly and sophisticated jurisdictions, which respect the rule of law and human rights, need to be aware that if things go wrong in their

jurisdiction, and persons in the Isle of Man have information that would assist them, then the Manx courts, in a proper case and, if necessary, subject to suitable safeguards, will offer judicial co-operation and assistance when that is reasonably requested by the judicial authority in that friendly jurisdiction. When the call for help comes, the Manx courts will, in proper cases, answer the call positively and provide the necessary co-operation and assistance.”

24. In Secilpar 2003-05 MLR 352 I granted orders in effect requiring the production of information regarding the beneficial ownership of companies incorporated under the laws of the Isle of Man on the basis that in the circumstances of that case there was a greater public interest in ordering disclosure than in preserving confidentiality. At paragraph 49 of my judgment I stated:

“Disclosure of the information in this case may provide considerable assistance to the victim of a potential wrongdoing and would enable the victim to further assert its legal rights in Portugal and would assist the administration of justice there.”

25. In Tomlinson (judgment delivered 26th July 2006) at paragraph 21 of the judgment I referred to various authorities including Brunning (judgment 7th March 2006 giving recognition and assistance to a Chapter 7 trustee in bankruptcy appointed by the United States Bankruptcy Court) and stated:

“It is well established that this court has wide powers to assist courts and insolvency officers from other jurisdictions.”

26. In Hafner (judgment 16th June 2006) the Appeal Division at paragraph 56 of the judgment referred to the fact that we lived in a time where:

“responsible jurisdictions are taking a global approach and assisting other jurisdictions in relation to investigations in respect of potential wrongdoings or in relation to cross-border insolvencies.”

27. In Wine (judgment delivered 29th May 2007) I stated the following:

“71. This court is not in a position to determine whether Mr Wine is attempting to hide assets from Mrs Wine. For the avoidance of any doubt however I should make this jurisdiction’s position crystal clear in respect of those who endeavour to use this Island to facilitate wrong doing.

72. It is not the policy of this jurisdiction to support a concept of blanket confidentiality to cloak irregular financial dealings (Tucker 1987-89 MLR 220 at 226-227). Those endeavouring to make use of the equivalent of Harry Potter’s invisibility cloak to prevent sight of information or documents regarding the proceeds of wrong doing will find, to their disappointment, that it does not work in this jurisdiction.

73. This jurisdiction does not exist to assist those who seek to evade their responsibilities to their wives. This jurisdiction does not exist to assist wrongdoers to hide their assets or the proceeds of their wrongdoings. This jurisdiction does not exist to assist those who seek to evade their creditors or their taxes. This jurisdiction does not exist to assist wrongdoers to evade foreign courts, foreign insolvency officers or foreign regulatory authorities.

74. It is the policy of this jurisdiction to assist parties, foreign courts, foreign regulatory authorities and foreign insolvency officers, where appropriate and subject to any suitable safeguards, in the provision of full information and documentation to enable a proper, just and fair determination of any issue or dispute in the principal jurisdiction of such issue or dispute.”

28. In Jones (Common Law Division CLA 2009/053) I made an order on the 16 June 2009 for the production of evidence under the Evidence (Proceedings in Other Jurisdictions) Act 1975 (an Act of Parliament) as extended to the Isle of Man by the Evidence (Proceedings in Other Jurisdictions) (Isle of Man) Order 1979 by way of assistance to the Family Division of the High Court of England and Wales. In that case certain parts of the request were ordered to be struck out in red.”

2. See Impex Services Worldwide Limited 2003-05 MLR 115, Lombard Manx Limited v Spirit of Montpelier Limited (Deemster Doyle’s judgment 11 December 2014), Cambridge Gas/Navigator [2006] UKPC 26, HIH Casualty and General Insurance Ltd [2008] UKHL 21, Liquidation of Founding Partners Global Ltd [2005] SC (Bda) 36 Comm (29 July 2009), Rubin v Eurofinance SA [2012] UKSC 46, Pattni v Ali [2007] 2 WLR 102, Pro Swing Inc v Elta Golf Inc (2006) SCR 612, Miller v Gianne [2007] CILR 1, Brunei Investment Agency v Fidelis Nominees Limited [2008] JRC 152, Deemster Doyle’s judgment in MK Investments Limited (22 August 2008), Lord Neuberger Insolvency, Internationalism & Supreme Court Judgments (11 November 2009), Deemster Doyle’s judgment in Comhfhorbairt (26 August 2010), Teare J’s judgment in Global Distressed Alpha Fund 1 Limited Partnership v P T Bakrie Investindo [2011] EWHC 256 (Comm), International Influence on the Common Law (11 November 2014) Lord Toulson, Kobuleti Shipping Company Limited (Appeal Division 11 January 2000), Singularis Holdings Limited v PricewaterhouseCoopers [2014] UKPC 36 and Kenichi Machida (Deemster Doyle’s judgment 4 December 2014).

3. Chief Justice Kawaley of Bermuda referred to Impex and The Spirit of Montpelier in Uprise Corporation Limited v Mingyuan Medicare Development Company Limited [2016] SC (Bda) 28 Civ (22 March 2016) at paragraphs 44 and 45. At footnote 6 to the judgment Chief Justice Kawaley referred to Impex and Singularis and stated:

“… based on far more refined reasoning than my own first instance ramblings, the Privy Council majority found the relevant common law power did exist after all, approving Deemster Doyle’s brave decision to be a “bold spirit” rather than a “timorous soul” in Re Impex.”

4. See Re Apcoa Parking Holdings GmbH [2014] EWHC 3849 (Ch) in respect of making insolvency orders to be recognised elsewhere. See Lord Mance’s lecture Jurisdiction and Justiciability (31 March 2015) where at paragraph 1 Lord Mance spoke of the

advantage of gaining information and experience from other jurisdictions. Lord Mance also referred to the jurisdiction in insolvency and the principle of universality of winding up (see paragraphs 21-24). Lord Mance referred to Singularis and at paragraph 23 stated:

“The majority thought that, even after Rubin v Eurofinance, the principle of universality still exists, where a company is in compulsory – though not voluntary – winding up, to the extent of enabling a common law court of one country to assist that of another country by ordering disclosure of relevant information or documentation. The minority (to which I belonged) thought that this was an unprecedented and unprincipled extension of power.”

5. See in detail the UK Supreme Court’s judgments in Rubin v Eurofinance SA [2012] UKSC 46. Lord Collins (with whom Lord Walker and Lord Sumption agreed) held that the Privy Council decision in Cambridge Gas was wrongly decided as there was no basis for the recognition of the US Bankruptcy Order in the Isle of Man in that case. At paragraph 132 Lord Collins stated:

“It follows that in my judgment, Cambridge Gas was wrongly decided.”

6. Lord Mance at paragraph 178 stated:

“I agree with Lord Collins’ reasoning and conclusions in his judgment on these appeals, essentially for the reasons he gives, though without subscribing to his incidental observation (para 132) that the Privy Council decision in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508 was necessarily wrongly decided. This was not argued before the Supreme Court, and I would wish to reserve my opinion upon it. Cambridge Gas is, on any view, distinguishable.”

7. The majority of the UKSC broadly held that a foreign court had jurisdiction to give a judgment in personam capable of recognition and enforcement against the person whom the judgment was given if the person (i) was present in the foreign court when proceedings were instituted; (ii) was a claimant, or counterclaimed, in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed to submit to the jurisdiction of the foreign court before the commencement of the proceedings. As a matter of policy the court did not agree that in the interests of the universality of bankruptcy and similar procedures, there should be a more liberal rule for judgments given in foreign insolvency proceedings for the avoidance of transactions.

8. The following is an extract from the UKSC press summary:

“Lord Clarke dissented on the Rubin appeal. He relied on the principle that avoidance orders made by a foreign courts in bankruptcy proceedings (personal or corporate), which the court has jurisdiction to entertain, were enforceable if it could fairly be said to have been made in personam or in rem. [193] It was possible to have a rem order incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy [195-6]. Avoidance orders are central to bankruptcy proceedings. To allow for their enforcement was in keeping with the principle of

modified universalism requiring English courts, so far as is consistent with justice and UK public policy, to co-operate with the courts in the country of the principal liquidation to ensure a company’s assets are distributed to the creditors under a single system of distribution [199]. This would be worked out on a case by case basis depending on the facts of the particular case. [200-1]”

9. In Saad Investments Company Limited – in official liquidation [2013] SC (Bda) 28 Com (15 April 2013) Chief Justice Kawaley in Bermuda referred to Deemster Doyle’s judgment in Re Impex Services Worldwide Ltd [2004] BPIR 564 and also commented upon Cambridge Gas and Rubin. The Chief Justice at paragraph 32 of his judgment concludes that “reading Rubin in a straight forward common sense way makes it impossible to conclude that Lord Hoffmann’s observations in Cambridge Gas about the scope of common law judicial assistance generally are in any way of diminished binding and/or persuasive force.” Chief Justice Kawaley at paragraph 46 referred to the “pioneering reasoning of Deemster Doyle in Re Impex Services Worldwide Ltd”. See now the judgment of Court of Appeal in Bermuda [2013] CA (Bda) 7 Civ 18 November 2013 and the judgment following the appeal to the Judicial Committee of the Privy Council [2014] UKPC 35. At paragraph 42 Bell, Acting J.A. in the Court of Appeal of Bermuda stated that Lord Collins at paragraph 132 of his judgment in Cambridge Gas was looking at matters from a conflict of laws perspective, and appeared to be holding that it was in relation to that perspective that Cambridge Gas was wrongly decided. At paragraph 43 Bell, Acting J.A. stated:

“43. That would be consistent with two other comments made by Lord Collins in the course of his judgment. First, in paragraph 33, Lord Collins referred to the case of Re Impex Services Worldwide [2004] BPIR 564, one of three first instance judgments analysed by the Chief Justice, to which I will come. Lord Collins referred to Impex as being a case of “judicial assistance in the traditional sense.” It seems hardly likely that Lord Collins would have so referred to Impex had he believed it to have been wrongly decided. Secondly, in paragraph 92, Lord Collins referred to the derivation of Ward LJ’s conclusion in the Court of Appeal, referring to “Lord Hoffmann’s brilliantly expressed opinion in Cambridge Gas.” Again it seems unlikely that Lord Collins would have used such language if he took the view that Lord Hoffmann had overstated the nature of the inherent power at common law to provide assistance to a foreign liquidator in terms wider than might have been available to him in the domestic liquidation.”

10. In Picard (trustee of the business of Bernard L Madoff Investment Securities LLC) v Primeo Fund (Cayman Grand Court FSD 275 of 2010 judgment 14 January 2013) considered Rubin and approved Re Impex Services Worldwide Ltd and held that this area of the law remained intact as regards “traditional” forms of judicial assistance.

11. Impex Services Worldwide Limited 2003-05 MLR 115 and Re Founding Partners Global Fund Ltd [2011] Bda LR 22 were followed by the High Court of Hong Kong at first instance by Jonathan Harris J in The Joint Official Liquidators of a Company v B and C HCMP 902/2014 (reasons for decision 21 July 2014). Harris J at paragraph 19 referred to “the needs of international commerce which is so important to Hong Kong” and commented at paragraph 17 that the judgment from the Isle of Man and the judgment from Bermuda demonstrated “the extent to which the courts in different common law jurisdictions, which do not have provisions similar to section 426 of the Insolvency Act 1986 in England, are adopting a consistent and expansive view of the extent to which

established common law principles require the court to recognise foreign liquidators and allow the court to provide assistance to them.”

12. Lord Neuberger in his lecture on The Remedial Constructive Trust – Fact or Fiction on 10 August 2014 stated:

“41. So too in the Cambridge Gas case in the Privy Council, with his characteristic bravura, Lord Hoffmann has invented and developed the “principle of universality” in the field of cross-border insolvency. However, it is fair to say that that principle has to some extent been called into question by Lord Collins in the Supreme Court in the subsequent Rubin decision, and the Privy Council is shortly to give a judgment which considers the principle in more detail, but unfortunately I cannot say more about that today.”

13. In Singularis Holdings Limited v PricewaterhouseCoopers [2014] UKPC 36 Lord Neuberger on 10 November 2014 said a little more about Cambridge Gas and Rubin (see paragraphs 154-157 of his judgment). The majority of the Board in Singularis (Lord Sumption, Lord Collins and Lord Clarke) referred to Impex and other authorities and held that a common law power to assist a foreign liquidator by ordering the production of information did exist but that the power was subject to a number of important limitations and should not be exercised in that case.

14. See Deemster Doyle’s judgment in MK Investments Limited (22 August 2008) in respect of recognising English administrators appointed over Manx companies. In Deutsche Pfandbriefbank AG/Alard Investments Limited [2015] JRC 137 (24 June 2015) Commissioner J A Clyde-Smith with jurats Kerley and Sparrow followed the decision of the English Court of Appeal in Re Tambrook Jersey Limited [2014] Ch 252 confirming the possibility of an administration order under the Insolvency Act 1986 being made over a Jersey company by means of the Jersey Royal Court issuing a letter of request for assistance of the English High Court under section 426 of the 1986 Act. Commentators add that the need to proceed by this route arises where the company does not otherwise fall within the jurisdiction of the 1986 Act by having its centre of main interests in the UK. See also Deemster Doyle’s judgment in Interdevelco Limited v Waste2Energy Group Holdings plc (10 October 2012) which makes reference to the principle of universalism in international insolvency cases and which should now be considered subject to the UKSC’s decision in Rubin v Eurofinance SA [2012] UKSC 46 and the decision of the Judicial Committee of the Privy Council in Singularis [2014] UKPC 36.

15. High Bailiff Needham in the JSC “Reverta” case (judgment delivered 22 November 2012) referred to Impex Services Worldwide 2003-05 MLR 115, Re Oxley 2003-05 MLR 57 and Rubin v Eurofinance SA [2012] UKSC 46 and concluded at paragraph 31 as follows:

“In my simple view the Manx court’s ability to assist foreign courts in bankruptcy proceedings remain a matter of judicial discretion to be exercised carefully and cautiously and in a spirit of international comity balancing the strengths of all parties’ interests and their concerns.”

16. Deemster Corlett in Petrodel Resources Limited v Le Breton (judgment delivered 24 January 2013) at paragraph 68 stated:

“... according to the relevant Manx rules of private international law (which it is my understanding remain unchanged following the Supreme Court’s judgments in Rubin v Eurofinance handed down on 24th October 2012), the Nigerian Court did not have in personam jurisdiction over Mr. Le Breton because he was neither present in person, he was not a claimant or counter claimant, and he had neither submitted to the jurisdiction by voluntary appearance nor had he agreed to submit to the jurisdiction. As the Appeal Division stated at paragraph 38 of their judgment of 27th January 2012, being an appeal from my judgment of 9th November 2011, it is a fundamental requirement of Manx law for the recognition or enforcement of a foreign judgment at common law that the foreign court should have had jurisdiction according to the Manx rules of the conflict of laws.”

17. If a similar situation to Cambridge Gas was to arise in the future would the Manx courts consider themselves bound by the JCPC’s decision in Cambridge Gas or would they follow the UKSC’s majority judgments in Rubin and what would they make of Singularis? These authorities in this developing area of the law need to be considered carefully and in detail.

18. In Kaupthing H.F. (acting by its Winding-Up Committee) (30 March 2016) Deemster Doyle referred to observations of counsel in respect of this area of the law:

“30. … Mr Brooks refers to the “unfortunate aura of uncertainty” (his words) in Manx law in the area of recognition within this jurisdiction of liquidations taking place outside this jurisdiction.”

19. The following is an extract from the UKPC press summary in respect of Singularis [2014] UKPC 36:

“The following two issues arise on this appeal:

1) whether the Bermudan court has a common law power to assist a foreign liquidation by ordering the production of information in circumstances where the Bermuda court has no power to wind up an overseas company and its statutory power to order the production of information is limited to cases where the company has been wound up in Bermuda.

2) whether, if such a power exists, it is exercisable in circumstances where an equivalent order could not have been made by the court in which the foreign liquidation is proceeding.

JUDGMENT

The Judicial Committee of the Privy Council will humbly advise Her Majesty that the appeal should be dismissed. The majority of the Board (Lord Sumption, Lord Collins and Lord Clarke) holds that such a common law power of assistance does exist, but this power is subject to a number of important limitations and should not be exercised in this case. Lord Mance and Lord Neuberger would also have dismissed the appeal, but consider that it is not appropriate to extend the

7 common law power to assist beyond categories which have some recognisable basis in current law.

REASONS FOR THE JUDGMENT Common law power to assist in foreign liquidation [9-26]

In the Board’s opinion, there is a power at common law to assist a foreign court of insolvency jurisdiction by ordering the production of information which is necessary for the administration of a foreign winding up. However, this power would not be available to enable liquidators to do something which they could not do under the law by which they were appointed. The question of what power the court has to assist a foreign liquidation without conducting an ancillary liquidation of its own depends upon the nature of the assistance sought [11]. There is an established “principle of modified universalism” at common law, that is to say, a power to assist foreign winding up proceedings so far as the court properly can. This is subject to local law and public policy, and to the limits of the court’s own statutory and common law powers [15-19]. The question therefore arises whether in the absence of a statutory power to order production of information, there is an inherent power at common law to do so. The courts have never been inhibited in their willingness to develop appropriate remedies to require the provision of information when a sufficiently compelling legal policy calls for it, as the case of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 illustrates. In the opinion of the Board, an analogous power arises in the present case [21-23].

The Board therefore concludes that such a power exists at common law. This power is available only to assist the officers of a foreign court of insolvency jurisdiction or equivalent public officers. It is a power of assistance which exists for the purpose of enabling those courts to surmount problems posed for a world-wide winding up by the territorial limits of each court’s powers. Significantly, it would not be available to enable such officers to do something which they could not do even under the law by which they were appointed. This power is available only when it is necessary for the performance of the office- holder’s functions. Any order must be consistent with the substantive law and public policy of the assisting court, in this case that of Bermuda. Common law powers of this kind are not a permissible mode of obtaining material for use in litigation, to which different rules and powers apply. As with other powers of compulsion exercisable against an innocent third party, exercise of this power is conditional upon the applicant being prepared to pay the third party's reasonable costs of compliance [25].

Exercise of the power of assistance in the present case [27-30]

Given these limitations on the common law power of assistance identified by the Board, this power should not be exercised in favour of the liquidators in the present case. The material which they seek in Bermuda would not be obtainable under the law of the Cayman Islands. The whole basis of the common law power is the right and duty of the Bermudan court to assist the Cayman court so far as it properly can. The Cayman court has no power to require third parties to provide its office-holders anything other than information belonging to the company. It does not appear to the Board to be a proper use of the power of

assistance to make good a limitation on the powers of a foreign court [29]. For this reason, the Board will humbly advise her majesty to dismiss the appeal.

Lord Collins has written a concurring opinion addressing the liquidators’ primary argument that the Bermudan court should apply the provisions of domestic insolvency legislation to a foreign insolvency “by analogy”. Lord Collins explains why this argument involves a fundamental misunderstanding of the limits of judicial law-making power. Although statute law may influence the policy of the common law, it cannot be assumed, simply because there would be a statutory power to make a particular order in the case of domestic insolvency, that a similar power must exist at common law. So far as Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings Plc [2007] 1 AC 508 suggests otherwise, that decision is wrong [18, 52] as are cases which have relied on Cambridge Gas to reach that conclusion [63].”

20. The negative effect of Singularis is already being felt in common law jurisdictions worldwide. See for example The joint administrators of African Minerals Limited (in administration) v Madison Pacific Trust Limited and Shangdong Steel of Hong Kong Zengli Limited [2015] HKCFI 645 : HCMP 865/2015 (16 April 2015) where the Hong Kong High Court refused to grant assistance to English administrators by way of a stay on enforcement on the basis that the assistance was not available under the common law of Hong Kong. The letter of request came from Mr Justice Newey in the English High Court dated 13 April 2015. Mr Justice Newey was a former panel Deemster in the Isle of Man. Mr Justice Harris in Hong Kong on 16 April 2015 declined to provide assistance. He referred to Singularis. He said the first issue was whether or not the Hong Kong Companies Court should provide assistance at all to the administrator as it is not an insolvency proceeding in its place of incorporation. At paragraph 9 of his judgment Harris J assumed, without deciding, that the Hong Kong courts can, in principle, recognise liquidators appointed in a jurisdiction other than the place of incorporation, or administrators appointed by the High Court in England. At paragraph 12 Harris J noted that Hong Kong did not have any equivalent to administration and no statutory provision which provides for a moratorium on the enforcement of secured debt. In respect of the relief sought, Harris J felt (at paragraph 12) that:

“… this would be an impermissible extension of the common law principle that requires the court to recognise foreign liquidators and assist them.”

21. For a powerful attack on Singularis, see A Saad Affair by Gabriel Moss QC and Professor Ian Fletcher QC published in Vol 28 Insolvency Intelligence Number 4 2015 at page 49. It will be recalled that Gabriel Moss QC acted for the unsuccessful appellant in Singularis. See also “Relashio!” : Liberating the Common Law on Judicial Cooperation from its State of Arrested Development – The British Atlantic and Caribbean World (2015) 3 NIBLeJ 10 by Ian Kawaley, the Chief Justice of Bermuda. It will be recalled that Chief Justice Kawaley was the judge at first instance in Singularis. See also The Waxing and Waning of the Tides : From the Isle of Man to Bermuda (2015) 3 NIBLeJ 9 by Paul Heath, a judge of the High Court of New Zealand.

22. It is important that the Privy Council, which hears appeals from compact jurisdictions, appreciate the reality on the ground in those compact jurisdictions. It is important that such jurisdictions meet international standards and provide global assistance where appropriate. The legislatures in such jurisdictions have to deal with many

pressing commitments and do not always legislate with expedition to keep up with international insolvency issues. Where circumstances permit it is essential in such compact jurisdictions that judges are not slow in developing the common law appropriately. This is not usurping the function of the legislature or “legislating from the bench”. It is simply developing the common law to suit the needs of the local jurisdiction in the absence of legislation. The Appeal Division in The Spirit of Montpelier (18 June 2015) at paragraphs 65 and 66 stated:

“65. We have carefully borne in mind the warning of Lord Collins as to not trespassing on the proper role of the legislature and that to do so might be `profoundly unconstitutional` but we are satisfied that it is appropriate to address this issue of inherent jurisdiction in a context where Tynwald has not taken any opportunity to amend the Act or the 1934 Rules, notwithstanding the provisions in England of the Companies Act 1985 and the Insolvency Rules 1986.

66. We are thus satisfied that the Manx courts have an inherent jurisdiction at common law to review, rescind or vary a winding-up order where such an order is necessary in the interests of justice. In our judgment such a jurisdiction should only be exercised where there has been a material change in circumstances since the making of the order, or if the facts on which the original order had been made were mistaken, innocently or otherwise, or if there had been a manifest mistake on the part of the judge in formulating the order.”

23. Chief Justice Kawaley in the Uprise Corporation Limited case [2016] SC (Bda) 28 Civ (22 March 2016) quoted paragraphs 65 and 66 of the Appeal Division’s judgment in The Spirit of Montpelier and referred to Bermuda’s “common law, common sense” approach to judging.

24. In Murray Holdings Limited United States Bankruptcy Judge Martin Glenn, sitting as a judge of the United States Bankruptcy Court Southern District of New York, made an order on 25 June 2015 (which he believed to be the first order of its type for the Isle of Man) recognising orders made by Deemster Doyle in respect of a corporate scheme of arrangement. This case is a good example of the courts of the United States seeing the good sense of recognising and enforcing orders made by the High Court in the Isle of Man. It is evidence of international judicial cooperation between the Isle of Man and the United States of America.

25. In Kenichi Machida (as trustee in bankruptcy of Shingi Nishida) Deemster Doyle (in a judgment delivered on 4 December 2014) cooperated with the courts of Japan and recognised a Trustee in Bankruptcy who had been appointed by the Tokyo District Court but limited the order in the first instance to “moveable property within the Isle of Man” (paragraph 6 of the judgment).

26. In The Joint Official Liquidator of A Company v B and C Harris J in the Hong Kong High Court at first instance on 21 July 2014 (pre-Singularis) at paragraph 10 referred to:

“The trend, certainly in the common law world, towards what is commonly referred to as “universalism” or “modified universalism”. In the case of personal bankruptcy the idea that there should be one process for the distribution of a bankrupt’s property, and that it should be administered by his place of domicile, has a long history …”.

27. Harris J referred to Impex Services 2003-05 MLR 115 (Deemster Doyle’s judgment) and Re Founding Partners Global Fund Ltd [2011] Bda LR 22 (Kawaley J’s judgment) and at paragraph 17 stated:

“The significance of Kawaley J’s decision and Impex Services is that they serve to demonstrate the extent to which the courts in different common law jurisdictions, which do not have provisions similar to section 426 of the Insolvency Act 1986 in England, are adopting a consistent and expansive view of the extent to which established common law principles require the court to recognise foreign liquidators and allow the court to provide assistance to them.”

28. The Hong Kong Companies Court decided (see paragraph 18 of the judgment) to follow the lead of the Manx and Bermudian courts and recognised the appointment by the Grand Court of the Cayman Islands of liquidators over a company incorporated in the Cayman Island. Harris J also made an order that the respondents produce certain documents to the liquidators concerning the details of bank accounts into which substantial sums of money were paid by the company in circumstances which suggest they may have been part of a fraudulent scheme.

29. In JSC “Reverta” (judgment 17 June 2013) High Bailiff Needham at paragraph 38 stated:

“I mentioned in my previous judgment that Lord Collins in the UK Supreme Court in Rubin v Eurofinance SA [2012] UKSC 46 was critical of the decision in Cambridge Gas. Nonetheless Cambridge Gas is a decision of a Manx court of the highest authority and the principles explained, even if amounting to obiter, are, in my view, to be followed.”

30. See the Canadian Supreme Court decision in Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077. Modern states cannot live in splendid isolation. They do give effect to judgments given in other countries. Modern times require that the flow of wealth, skills and people across boundaries be facilitated in a fair and orderly manner. Principles of order and fairness which ensure security of transactions with justice must underlie a modern system of private international law. The concept of comity must be adjusted in the light of a changing world order.

31. In Silina v Lyubomska (Appeal Division judgment 24 May 2013) it was stated:

“2. In August 2011 the First Respondent applied for an injunction against the Second Respondent compelling him to comply with orders made in the High Court of Justice in Northern Ireland (the “Irish Court”) and make lump sum payments. On the 15th December 2009 an order had been made in the Irish Court granting a freezing injunction restraining the Second Respondent from disposing of his property including monies held in an account in his name at Nationwide International in the Isle of Man. In a judgment delivered by the Irish Court on the 25th February 2010 it was held, on the basis of the evidence presented to the court, that the amounts held in the account in the Isle of Man belonged to the Second Respondent. The Irish Court refused to discharge or vary the freezing injunction. The Irish Court has made various orders against the Second Respondent which require the payment of monies to the First Respondent. Absent any appeal from the orders of the Irish Court the Second Respondent should comply with those orders and the funds in his account at

Nationwide International should, subject to any legitimate claims as to ownership by others, be used to discharge his liabilities under the orders of the Irish Court.”

32. See also the Irish Supreme Court decision in Walsh v National Irish Bank Limited (judgment 25 January 2012 Appeal No. 267/2007) and the position where a clear disclosure obligation in one jurisdiction potentially or arguably conflicts with a possible duty to retain confidentiality or to respect privacy in another jurisdiction. The Irish Supreme Court referred to Deemster Cain’s judgment in Re Blayney and Grace 2001- 03 MLR 13 and Deemster Doyle’s judgments in Gladstone v Brunning (CP 2004/146, 7 March 2006), Impex Services Worldwide Ltd 2003-05 MLR 115 and Wine (29 May 2007).

33. See Igbal [2010] EWCA Civil 3215 (re English courts not only concerned with local terrorism but also international terrorism). See also F [2007] EWCA Crim 243.

34. See HSBC Bank Plc v Tambrook Jersey Limited [2013] EWCA Civ 576 which dealt with the interpretation of section 426 of the Insolvency Act 1986 and the circumstances in which the Courts of England and Wales have jurisdiction to accede to a request for assistance from a foreign court (in that case the Royal Court of Jersey with a request for the appointment of administrators over a company incorporated under the laws of Jersey with the centre of main interest in Jersey). See How Strong and How Long is ‘The Golden Thread’? Jurisdictional issues in a globalised world by Anthony Dessain and Michael Wilkins in 2014 The Jersey & Guernsey Law Review 72.

35. See Capita Asset Services (London) Limited v Gulldale Limited where Deemster Doyle in a judgment delivered on 9 January 2014 referred to Tambrook and issued a letter to the High Court in England requesting that such court place the Defendant, a company incorporated under the laws of the Isle of Man, into administration under the laws of England and Wales. See also Re Apcoa Parking (UK) Limited [2014] EWHC 997 (Ch); [2014] 4 All ER 150 in respect of schemes of arrangement and foreign companies.

36. Tom Bingham, whose mother’s family were Manx, in the Business of Judging (2000) at page 19 stated:

“... it will surely be true in the future, as never before, that no island is an island. But as we borrow and domesticize the thinking of others so others will borrow from us, as they already have.”

37. Ann-Marie Slaughter in Judicial Globalization (40 Virginia Journal of International Law 1103, 2000) at page 1124 stated:

“It requires that judges see one another … as fellow professionals in a profession that transcends national borders. This recognition is the core of judicial globalization, and judges, like the litigants and lawyers before them, are coming to understand that they inhabit a wider world.”

38. Lord Woolf in The International Role of the Judiciary (2003) stated:

“Today no country is cocooned from its neighbours. Human beings do not live in hermetically-sealed containers. While we remain citizens of our individual nations, what happens in any part of the globe can affect us all.”

39. Lord Neuberger in The Common Law : No Legal Island unto itself (a contribution to A New Courthouse proceedings of the official opening of the Queen Elizabeth II Courts of Law and the Supreme Court Seminar Queensland 2012) at page 72 stated:

“The common law, at least in England and Wales, is now happily but discriminatingly prepared to receive influences from Europe, from the United States, and from the Commonwealth.”

At pages 76-77 Lord Neuberger added:

“… during its long and impressive life, through the operation of precedent, and unfettered by a code, the common law has been able to incorporate and adapt ideas from elsewhere and make them its own. This is, I think, its great strength and one of the main reasons why it has been so successful, and will continue to be so. The common law is not, and never has been, an island entire of itself. It is an island connected through land, sea, air and the ether to Australia and New Zealand, as to other Commonwealth jurisdiction[s], as well as to Europe and North America. In the coming century it will no doubt also build on its connections with other continents, South America and China, for instance. This is not something which we should regret or fear: it is something which, as common lawyers, we should embrace. There will no doubt be many novel ideas and concepts that we might find, and adopt - and which we may, no doubt, in future years claim to have invented.”

40. There is a great deal of worldwide judicial co-operation in respect of legal proceedings and the enforcement of judgments. See for example the “Memorandum of Guidance as to Enforcement between the DIFC Courts and the Commercial Court, Queen’s Bench Division, England and Wales” signed on 23 January 2013. The DIFC Courts deal with civil and commercial disputes which are connected to the Dubai International Financial Centre or in respect of which the parties have agreed that the DIFC Courts should have jurisdiction. Cooke J the Judge in Charge of the English Commercial Court stated:

“A surprising number of people today are unaware of the reciprocity between courts. While reiterating other existing relationships between DIFC Courts and the Commercial Court in London, the Memorandum of Guidance sets out the basis upon which the judgments of one court can be enforced in the other and helps to engender an atmosphere in which business can flourish.”

41. Lord Toulson in International Influence on the Common Law (11 November 2014) at paragraph 16 referred to FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45 and Lord Neuberger speaking of “the desirability of common law jurisdictions learning from one another and leaning in favour of harmonising the development of the common law round the world.” Lord Toulson concluded as follows at paragraph 42:

“42. I return to my two stories. The common law is our habitat. It is like the water in which we swim. We are not always as conscious as we should be of what is to be found in it. It has served us very well and continues to do so. Its methodology enables it to be shaped and developed to meet the needs of justice in a changing world, politically, economically,

technologically or socially. In adapting it, the court’s horizons should never be narrow. As Pope Gregory advised St Augustine, our attachment to places should not inhibit our search for good things.”

42. In An English Judge in Europe Arden L J 28 February 2014 stated:

“By looking abroad we can in my view learn to do a better job at home …” (para 6). “The role of judges today can include stepping beyond their national shores and finding out what is happening in the highest courts of their own region in the world and in the supranational courts whose jurisprudence applies to them. Judges need to establish networks with judges in different jurisdictions – to understand those legal systems and take inspiration from them, like Parke B. in Hadley v Baxendale [(1854) 9 Ex 341]” (para 87).

43. Lord Neuberger, President of the Supreme Court of the United Kingdom in a response to a question following his speech at the Hong Kong Foreign Correspondents’ Club on The Third and Fourth Estates : Judges, Journalists and Open Justice 26 August 2014 stated [at 42.18 on clip at HKFCC website]:

“… What I can say is that I think that it is enormously rewarding and beneficial to have judges from one jurisdiction, in my case the United Kingdom, coming to sit in a court of a different jurisdiction [I believe it benefits Hong Kong, although that sounds rather arrogant I’m not talking about myself but] generally to have fresh views, fresh experiences, a bit of fresh air as it were, in, and it is certainly enormously beneficial for me sitting in London in one court, day in and day out, to come over here and sit with different people, see new lawyers, new laws and new approaches and certainly I would love it if the common law countries, Australia, New Zealand, Hong Kong maybe Singapore, actually swopped judges in the way that Hong Kong has done to its benefit and to the benefit of judges such as myself who sit here …”

44. See also Hong Kong’s Court of Final Appeal by Young and Ghai (2014 Cambridge University Press) and Human Rights Source, Content and Enforcement by Kemal Bokhary.

45. See R(Wang Yam) v Central Criminal Court [2015] UKSC 76 indicating that the starting point when considering a general discretionary common law power is that domestic and international law considerations are separate. The decision-maker may take international law obligations into account but is not bound to do so.

46. Lord Dyson MR in The Globalisation of Law at paragraph 37 stated that there was nothing new in the idea of English common law being influenced by the law of other jurisdictions. Lord Dyson at paragraph 36 made the following observations about the globalisation of English common law:

“Our judges are not bound to follow the jurisprudence of the courts of other common law systems. But there is a growing interest in the extent to which the jurisprudence of other common law courts should influence the development of the common law here.”

At paragraph 41 Lord Dyson added:

“We are living in an increasingly interdependent world. Jurists read each other’s judgments with ease on the internet. They meet at international conferences to discuss issues of common interest. The good sense of learning from each other and taking the best that each of us has to offer is now well appreciated.”

47. The world is getting smaller. Globalisation and universalism will become firmly entrenched in judicial thinking. In Jetivia SA v Bilta (UK) Limited [2015] UKSC 23 the worldwide effect of a winding up order was recognised. As a sign of possible universality/globalisation developments in the future the following appears at paragraph 213 of the judgment of relative Supreme Court newcomers Lords Toulson and Hodge:

“… It would seriously handicap the efficient winding up of a British company in an increasingly globalised economy if the jurisdiction of the court responsible for the winding up of an insolvent company did not extend to people and corporate bodies resident overseas who had been involved in the carrying on of the company's business.”

48. Anne-Marie Slaughter in Judicial Globalization 40 Va. J. Int’l L 1103 at 1124 stated:

“All this activity, from the most passive form of cross-fertilization to the most active cooperation in dispute resolution, requires recognition of participation in a common judicial enterprise, independent of the contents and constraints of specific national and international legal systems. It requires that judges see one another … as fellow professionals in a profession that transcends national borders. This recognition is the core of judicial globalization, and judges, like the litigants and lawyers before them, are coming to understand that they inhabit a wider world.”

49. Deemster Doyle in a paper delivered at Harvard Law School in Boston on 3 October 2007 Manx Law: A contribution from the Isle of Man argued against intellectual and judicial insularity and in favour of laws being developed and problems being solved by reaching out for knowledge and solutions that may be provided by approaches from jurisdictions beyond our local frontiers. In reaching out to foreign jurisdictions account must be taken of local history, traditions, laws and needs. Deemster Doyle concluded his paper with the following words:

“Greater co-operation and communication will generate greater knowledge and understanding. In turn, this will give us the strength, wisdom and an extended reach that comes from working together. In that way we can all be part of a smoothly functioning international law regime.”

50. See Deemster Doyle’s lecture at the Oxford Union on 17 July 2014 on Rule of Law – the backbone of economic growth and the reference to international collaboration. See also Deemster Doyle’s lecture at the Oxford Union on 6 July 2016 on The rule of law – judicial independence and accountability and the need for judges to step beyond their national boundaries to learn from, and collaborate with, the rest of the world. The lectures can be accessed at www.courts.im scroll down to lectures and click on the link.

51. Deemster Gough in Iota Violet LLC and others v Woman LLC and L J Management (IOM) Limited (judgment 21 December 2015) at paragraph 23 referred to the “current trend towards greater international judicial cooperation between friendly and sophisticated jurisdictions”. In that case Deemster Gough released the applicants from their undertaking not to use documents disclosed pursuant to an interlocutory disclosure order in other jurisdictions without permission of the court, to the extent required to enable them to use the disclosed material in and for proceedings in the United States of America and any related proceedings in St. Vincent and the Grenadines. Deemster Gough stated:

“23. There is a current trend towards greater international judicial cooperation between friendly and sophisticated jurisdictions. In his very useful talk to trainee Manx advocates in October 2015, Deemster Doyle traced this cooperation by a review of some of the more notable Manx cases in recent years. I do not here attempt to compete with Deemster Doyle’s knowledge and industry in reviewing these cases but one or two of the cases are worthy of mention to illustrate the degree of international assistance many jurisdictions currently afford to each other. I should say that I consider the USA to be a friendly and sophisticated jurisdiction, and was recognised as such in US Securities & Exchange Commission v Wyly & Others [Judgment Deemster Doyle 30 April 2012]. That case involved a Letter of Request from the SEC (a US regulatory body) seeking information by way of deposition from various Isle of Man corporate service providers. Deemster Doyle there took into account “the developing jurisprudence in respect of this court’s co-operation with courts exercising jurisdiction in a country or territory outside the Isle of Man.”

24. There are other helpful cases referred to in Deemster Doyle’s talk. I do not need to refer to them all to make the point that confidentiality is often and properly sacrificed in the public interest of aiding foreign courts and litigants. In Impex Services Worldwide Limited 2003-05 MLR 115 the court assisted a provisional liquidator to obtain documents and examine witnesses. In Secilpar 2003-05 MLR 352 Deemster Doyle granted orders under the Norwich Pharmacal jurisdiction to assist an alleged victim to obtain justice in proceedings in Portugal. In other Manx cases the policy of giving assistance to foreign trustees in bankruptcy and liquidators is reinforced. I do not recite them all here.”

[Doyle August 2016]