Northsea Base Investment Ltd & Ors, Re

For each company in a corporate group, centre of main interests (COMI) must be assessed separately. The registered-office presumption may be rebutted only by a comprehensive assessment of objective factors that are ascertainable by third parties. The location of assets or contracts alone is insufficient. The court must identify where the company’s actual administration, management and supervision of its interests is centred. Evidence concerning agents, creditor dealings, payment arrangements, contractual contacts and operational management may establish a COMI different from the registered office.

The administrators of eight Cyprus-incorporated shipping companies sought declarations under paragraph 68(2) of Schedule B1 to the Insolvency Act 1986 that each company’s COMI was in England and Wales. The declarations were intended to assist the recognition or opening of insolvency proceedings in other jurisdictions.

The companies comprised six single-ship special purpose vehicles, their holding company, and the ultimate holding company. Their affairs involved entities and activities in Cyprus, England, India, Switzerland, Nevis and Jersey. The central issue was whether the evidence rebutted the presumption that COMI was located at each company’s registered office in Cyprus.

1. The applications were granted. The COMI of each applicant company was declared to be England and Wales.

2. Under article 3 of the EC Regulation on Insolvency Proceedings 2000, the registered office gives rise to a presumption that the company’s COMI is in that Member State. The burden lies on the applicant to establish a different COMI through a comprehensive review of the facts, focusing particularly on objective matters ascertainable by third parties.

3. Consistently with In re Eurofood IFSC Limited C-341/04, each company within a group is a distinct legal entity whose COMI must be considered separately. The relevant factors must be objective and externally ascertainable.

4. Interedil SRL v Fallimento Interedil SRL C-396/09 confirms that the presence of assets or contracts in a Member State other than that of the registered office is insufficient by itself. The court must assess all relevant factors and determine where the company’s actual centre of management and administration is located.

5. For the six Ship Companies, Marine Cross’s London-based involvement was critical from the perspective of third parties. It handled creditor payments, bunkering arrangements, operational queries and aspects of chartering. The evidence rebutted the Cyprus presumption. India was not a realistic COMI because third parties would not regard the administration of the companies as centred there.

6. For Northsea Base Investment Limited and Baltic Tankers Holding Limited, the companies had little operational function. Their principal relevant COMI factors concerned their banking relationships. The English-law loan facilities, English jurisdiction clauses, London-based contacts and payment arrangements were sufficient to rebut the presumption.

7. The court was also satisfied that the urgency justified the administrators’ out-of-court appointments under paragraph 22 of Schedule B1. Declarations were granted under paragraph 68(2).