‘Mr Suh’s position is able to be put shortly. It is that he is only recently in office. More, he was only aware of the proceedings at all on 16 June and on 23 June he was able to contact Hill Dickinson and then instruct them, who had been the solicitors involved at an earlier stage of the English proceedings. He recognises that this might be a claim which is best adjudicated on, best determined by the English court, but he wishes to have time to understand the claim and to take advice on it and obviously part of that advice would be the likelihood of the court acceding to any request by the company for relief for serial non-compliance with the court’s directions. In other words, even if the matter does go forward it is not clear that it will end up in a judgment which is the result of submissions from both sides, because it may be that the company can never get over the historic procedural defects.’
‘There is in my view an air of unreality in the submission that it would either be fair, just or convenient to visit upon a Swiss bankruptcy court the adjudication of an underlying dispute which is almost entirely governed by English law, concerns shipping matters and which is already the subject of two pending arbitrations before experienced tribunals pursuant to obligations in the contracts out of which the dispute has arisen. The Swiss court would be obliged to rely for the determination of most of the matters in issue upon expert evidence as to English law (whether from a single expert or competing experts) and its own relevant experience would be limited to Swiss insolvency law, as to which, despite having many months to do so, none of the parties have identified any specific issue to be decided.’
‘First, where there is real doubt about the existence or extent of a prospective creditor's rights, it will often be necessary to find a mechanism to resolve that doubt. Understanding the company's financial obligations is not inimical to the purpose of administration. Where (as here) the administrators are considering making distributions to creditors, it may positively assist it. As in a liquidation, there may be various ways in which that can be done. Where a prospective creditor has a claim for unliquidated damages there will often be a strong argument that it is just for the claim to be resolved by the court. That does not mean that the creditor will be permitted to enforce any judgment it obtains. But it will often be in the creditors' collective interests, as well as the individual claimant’s, for the parties to have a definitive decision about what the liability is and therefore understand the company's financial position.’
‘[An affected creditor applying to vary a stay imposed under the Model Law] must first identify the nature of the interest that he wishes to promote by obtaining that relief. He must secondly address the question whether the grant of such relief is likely to impede the achievement of the purpose of the insolvency proceeding (here, rehabilitation). He must thirdly enable the Court to balance his legitimate interests against the interests of other creditors, having regard to the nature and the probability of occurrence of prejudice on either side. An affected creditor making such an application under a modified stay imposed under the Model Law must in addressing these questions bear in mind that he is seeking to persuade the domestic court to interfere in the processes of the insolvency court. The list of relevant considerations is not exhaustive’; and a further passage at [31]: ‘As Patten J pointed out in AES Barry Ltd v TXU Europe Energy Trading[2004] EWHC 1757 at [24] it will only be in ‘exceptional’ cases that the court gives a creditor, whose claim is simply a monetary one, a right by the taking of proceedings to override and pre-empt the statutory machinery. The term ‘exceptional’ is protean: but in this context I think it means that the applicant creditor must demonstrate a circumstance or combination of circumstances of sufficient weight to overcome the strong imperative to have all the claims dealt with in the same way (and in the instant case by the insolvency court). That said, a domestic court, recognising the general desirability of having one insolvency estate under the management of one insolvency court, should not be too ready to find the factors of ‘sufficient’ weight (but, given the nature of the decision, is unlikely to be assisted by the extensive citation of judgments which simply show the assessments made by other judges).’
‘in general, the resolution of disputed matters within the machinery of a liquidation was likely to be cheaper and quicker than if left to ordinary proceedings, and that the often limited resources of the office-holder meant that the court should be cautious before exposing liquidators (or their equivalent) to the burden of coping with difficult and time-consuming litigation’
‘By analogy, it is therefore likely that the Rehabilitation Court would also recognise a final foreign court judgment, provided it satisfies the statutory requirements for recognition, including reciprocity, set out in Article 217 of the Korean Civil Procedure Act (the “CPA”). Korean Law recognises foreign judgments on the basis of reciprocity: a foreign judgment may be recognised in Korea if, among other conditions, the foreign country similarly recognises Korean judgments, or if any differences in the recognition standards are not material. Once recognised under the CPA, a foreign judgment may be declared enforceable by a Korean court, allowing execution against assets located in Korea pursuant to Article 26 of the Korean Civil Execution Act. Accordingly, if the English court judgment amount is final and enforceable, the Rehabilitation Cout would treat it as a fixed enforceable claim (subject to recognition under the CPA), rather than having to reassess the underlying the [sic] amount.’
‘(1) A final and conclusive judgment rendered by a foreign court or a judgment acknowledged to have the same force (hereafter referred to as “final judgment, etc”) shall be recognised, if all of the following requirements are met: 1. That the international jurisdiction of such foreign court is recognised under the principle of international jurisdiction pursuant to the statutes or treaties of the Republic of Korea; 2. That a defeated defendant is served, by a lawful method, a written complaint or document corresponding thereto, and notification of date or written order allowing him or her sufficient time to defend (excluding cases of service by public notice or similar), or that he or she responds to the lawsuit even without having been served such documents; 3. That the approval of such final judgment, etc does not undermine sound morals or other social order of the Republic of Korea in light of the contents of such final judgment, etc and judicial procedures; 4. That mutual guarantee exists, or the requirements for recognition of final judgment, etc in the Republic of Korea and the foreign country to which the foreign country court belongs are not far off balance and have no actual difference between each other in important points. (2) A court shall ex officio investigate whether the requirements under paragraph (1) are satisfied.’
‘UKHO’s damages claim against the Company constitutes a rehabilitation claim, which must be repaid in accordance with the modification of rights and repayment method prescribed in the Company’s Rehabilitation Plan. If UKHO’s claim remains unconfirmed at the time the Rehabilitation Plan is submitted for approval at the Interested Parties Meeting, the plan may specify the treatment and repayment method applicable to such unconfirmed claims. Accordingly, in principle, the Company’s rehabilitation and M & A process would likely proceed irrespective of when the English litigation concludes. Under Korean rehabilitation practice, it is common for the court to deny voting rights to unconfirmed claims, such as those that remain under litigation, and such a decision by the court is not subject to appeal.’
‘Another question that may be relevant is whether the Rehabilitation Court would postpone the rehabilitation process in order to await a quantum determination in either the Claim Allowance Proceedings or the English Proceedings. In my view, this appears unlikely. Under Korean rehabilitation practice, the approval or rejection of the Rehabilitation Plan must be determined within one year … or within one year and six months at the latest if an extension is granted due to exceptional circumstances. Accordingly, the Rehabilitation Court is expected to proceed within this statutory timeframe rather than delay the process to await the outcome of either the Claim Allowance Proceedings or the English Proceedings.’
‘I think it would be perfectly possible for this court not to accede to an application to extend the stay, if that is what is made, at the next hearing. It would not be an answer to it that there were these ongoing administration proceedings’
‘in general, the resolution of disputed matters within the machinery of a liquidation was likely to be cheaper and quicker than if left to ordinary proceedings, and … the often limited resources of the office-holder meant that the court should be cautious before exposing liquidators (or their equivalent) to the burden of coping with difficult and time-consuming litigation.’