Conflict of laws—Insolvency—Foreign administrator

Chancery Division, Proudman J, 23 Jan 2012

The court has an inherent common law jurisdiction to permit the statutory power under s 423 of the Insolvency Act 1986 (IA 1986) to be applied to a foreign administrator not falling within the express scope of the statute. 

David Marks QC (instructed by Dewey & Le Boeuf LLP) for the appellant. David Wolfson QC and Adam Rushworth (instructed by Kennedys Solicitors) for the respondents.

Phoenix was a German company carrying on business in Germany and elsewhere pursuant to contracts with individuals, including the appellants. Phoenix held all the money collected from investors in a single managed account. Phoenix represented that it was a trustee of the money which would be invested in the futures market. The claimant, the German administrator of Phoenix, alleged that the enterprise was loss-making from the start; all or most of the money invested was used to cover existing overheads and to pay fictitious