British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
Statutory Instruments of the Scottish Parliament
You are here:
BAILII >>
Databases >>
Statutory Instruments of the Scottish Parliament >>
Act of Sederunt (Rules of the Court of Session Amendment No. 2) (UNCITRAL Model Law on Cross-Border Insolvency) 2006 No. 199
URL: http://www.bailii.org/scot/legis/num_reg/2006/20060199.html
[
New search]
[
Help]
SCOTTISH STATUTORY INSTRUMENTS
2006 No. 199
COURT OF SESSION
Act of Sederunt (Rules of the Court of Session Amendment No. 2) (UNCITRAL Model Law on Cross-Border Insolvency) 2006
|
Made |
3rd April 2006 | |
|
Coming into force |
6th April 2006 | |
The Lords of Council and Session, under and by virtue of the powers conferred upon them by section 5 of the Court of Session Act 1988[
1] and of all other powers enabling them in that behalf, do hereby enact and declare:
Citation and commencement
1.
–
(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session Amendment No. 2) (UNCITRAL Model Law on Cross-Border Insolvency) 2006 and shall come into force on 6th April 2006.
(2) This Act of Sederunt shall be inserted in the Books of Sederunt.
Amendment of the Rules of the Court of Session
2.
–
(1) The Rules of the Court of Session 1994[2] shall be amended in accordance with the following sub-paragraphs.
(2) In rule 62.1 (disapplication of certain rules to Chapter 62) at the beginning there shall be inserted "Subject to Part XIII,".
(3) At the end of Chapter 62 (recognition, registration and enforcement of foreign judgments etc.) there shall be inserted the following:—
"
PART XIII
UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY
Application and interpretation of this Part
62.90.
–
(1) This Part applies to applications under the Model Law and applications under the Scottish Provisions.
(2) In this Part—
"application for an interim remedy" means an application under article 19 of the ModelLaw for an interim remedy by a foreign representative;
"former representative" means a foreign representative who has died or who for any other reason has ceased to be the foreign representative in the foreign proceeding in relation to the debtor;
"the Model Law" means the UNCITRAL Model Law on Cross-Border Insolvency as set out in Schedule 1 to the Cross-Border Insolvency Regulations 2006[4];
"modification or termination order" means an order by the court pursuant to its powers under the Model Law modifying or terminating recognition of a foreign proceeding, the restraint, sist and suspension referred to in article 20(1) of the Model Law or any part of it or any remedy granted under article 19 or 21 of the Model Law;
"recognition application" means an application by a foreign representative in accordance with article 15 of the Model Law for an order recognising the foreign proceeding in which he has been appointed;
"recognition order" means an order by the court recognising a proceeding as a foreign main proceeding or a foreign non-main proceeding, as appropriate;
"review application" means an application to the court for a modification or termination order;
"the Scottish Provisions" are the provisions of Schedule 3 to the Cross-Border Insolvency Regulations 2006; and
words and phrases defined in the Model Law have the same meaning when used in this Part.
(3) References in this Part to a debtor who is of interest to the Financial Services Authority are references to a debtor who—
(a) is, or has been, an authorised person within the meaning of section 31 of the Financial Services and Markets Act 2000[5] (authorised persons);
(b) is, or has been, an appointed representative within the meaning of section 39 (exemption of appointed representatives) of that Act; or
(c) is carrying on, or has carried on, a regulated activity in contravention of the general prohibition.
(4) In paragraph (3) "the general prohibition" has the meaning given by section 19 of the Financial Services and Markets Act 2000 and the reference to "regulated activity" shall be construed in accordance with—
(a) section 22 of that Act (classes of regulated activity and categories of investment);
(b) any relevant order under that section; and
(c) Schedule 2 to that Act (regulated activities).
General
62.91.
–
(1) Rule 62.1 (disapplication of certain rules to Chapter 62) shall not apply to an application to which this Part relates.
(2) Unless otherwise specified in this Part, an application under the Model Law or the Scottish Provisions shall be made by petition.
(3) For the purposes of the application of rule 14.5(1) (first order for intimation, service and advertisement) to a petition under this Part, where necessary, the petitioner shall seek an order for service of the petition on:—
(4) On the making of—
(a) a recognition order;
(b) an order granting an interim remedy under article 19 of the Model Law;
(c) an order granting a remedy under article 21 of the Model Law;
(d) an order confirming the status of a replacement foreign representative; or
(e) a modification or termination order,
the Deputy Principal Clerk shall send a certified copy of the interlocutor to the foreign representative.
Recognition application
62.92.
–
(1) A petition containing a recognition application shall include averments as to—
(a) the name of the applicant and his address for service in Scotland;
(b) the name of the debtor in respect of which the foreign proceeding is taking place;
(c) the name or names in which the debtor carries on business in the country where the foreign proceeding is taking place and in this country, if other than the name given under sub-paragraph (b);
(d) the principal or last known place of business of the debtor in Great Britain (if any) and, in the case of an individual, his last known place of residence in Great Britain, (if any);
(e) any registered number allocated to the debtor under the Companies Act 1985;
(f) the foreign proceeding in respect of which recognition is applied for, including the country in which it is taking place and the nature of the proceeding;
(g) whether the foreign proceeding is a proceeding within the meaning of article 2(i) of the Model Law;
(h) whether the applicant is a foreign representative within the meaning of article 2(j) of the Model Law;
(i) the address of the debtor's centre of main interests and, if different, the address of its registered office or habitual residence as appropriate;
(j) if the debtor does not have its centre of main interests in the country where the foreign proceeding is taking place, whether the debtor has an establishment within the meaning of article 2(e) of the Model Law in that country, and if so, its address.
(2) There shall be lodged with the petition—
(3) The affidavit to be lodged under paragraph (2)(a) shall state whether, in the opinion of the applicant, the EC Insolvency Regulation applies to any of the proceedings identified in accordance with article 15(3) of the Model Law and, if so, whether those proceedings are main proceedings, secondary proceedings or territorial proceedings.
(4) Any subsequent information required to be given to the court by the foreign representative under article 18 of the Model Law shall be given by amendment of the petition.
Application for interim remedy
62.93.
–
(1) An application for an interim remedy shall be made by note in process.
(2) There shall be lodged with the note an affidavit sworn by the foreign representative stating—
Application for remedy
62.94.
(1) An application under article 21 of the Model Law for a remedy shall be made by note in process.
(2) There shall be lodged with the note an affidavit sworn by the foreign representative stating—
Application for confirmation of status of replacement foreign representative
62.95.
–
(1) An application under paragraph 2(3) of the Scottish Provisions for an order confirming the status of a replacement foreign representative shall be made by note in process.
(2) The note shall include averments as to—
(3) There shall be lodged with the note—
Review application
62.96.
(1) A review application shall be made by note in process.
(2) There shall be lodged with the note an affidavit sworn by the applicant as to—
BRIAN GILL
Lord Justice Clerk, I.P.D.
Edinburgh
3rd April 2006
EXPLANATORY NOTE
(This note is not part of the Act of Sederunt)
This Act of Sederunt makes amendments to the Rules of the Court of Session 1994 (S.I. 1994/1443) to make provision in respect of applications under the UNCITRAL Model Law on Cross-Border Insolvency.
Notes:
[1]
1988 c.36; section 5 was amended by the Civil Evidence (Scotland) Act 1988 c.32, section 2(3) and by the Children (Scotland) Act 1995 c.36, Schedule 4, paragraph 45.back
[2]
S.I. 1994/1443, last amended by S.S.I. 2006/87.back
[3]
Council Regulation (EC) 1346/2000, O.J. No. L 160, 30.06.00 p.1.back
[4]
S.I. 2006/1030.back
[5]
2000 c.8.back
[6]
1986 c.45.back
ISBN
0 11 070261 1
© Crown copyright 2006
Prepared
18 April 2006