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International Judicial Co-Operation

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International Judicial Co-Operation NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES (Talk at 5pm on 2 March 2015) INTERNATIONAL JUDICIAL CO-OPERATION 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.) 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 1 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. 2 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. 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.” 4. 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.” 5. 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 3 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. 6. 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.
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