Re Fullerton Capital Ltd (in liquidation)

The liquidators and foreign representatives of the Company had applied to the General Division of the High Court (“GDHC”) seeking recognition of the Company’s ongoing liquidation in the British Virgin Islands (“BVI” and “BVI Liquidation”) as a foreign main proceeding. The application was opposed on the basis that China and not the BVI was the Company’s centre of main interests (“COMI”) and the BVI Liquidation was thus not eligible for recognition under Article 17(2)(a) of the UNCITRAL Model Law on Cross-Border Insolvency which applied pursuant to the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (the “SG Model Law”).

The Court of Appeal upheld the decision below that the Company’s COMI was the BVI. In doing so the Court found that Article 16(3) of the SG Model Law laid down a rebuttal presumption that a debtor’s COMI was at the place of its registered office. The burden of establishing “proof to the contrary” on a balance of probabilities lay with the party asserting that the debtor’s COMI was at a place other than its registered office. To do so, that party must identify a competing jurisdiction as the debtor’s COMI and show how the debtor had a stronger connection to that jurisdiction than the registered office.

As the place of the Company’s registered office was the BVI, the starting point was that the BVI was its COMI in the absence of proof to the contrary. The presumption had not been rebutted – there was a paucity of evidence to establish that there was another jurisdiction (i.e., China) with a comparatively stronger connection to the Company than the BVI.

Read the full judgment here