Legislation
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OOO Nevskoe v UAB Baltijos Saliu Industrinio Perdirbimo Centras...(11 January 2023)

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The King's Bench Division granted the claimant Russian company a final third party debt order (TPDO), applying the 'first past the post' principle, in circumstances where the defendant debtor (a Lithuanian company) had failed to pay for wheat that the claimant had sold to it, and where the arbitral tribunal in Lithuania had made an award in favour of the claimant (the award). The claimant had obtained an interim TPDO after discovering that the defendant had money in a bank account held by the third party in England, where the award was recognised. Between the making of the interim TPDO and the date of hearing of the final TPDO application, a foreign court appointed administrator (the foreign administrator) applied for the recognition, in England, of the defendant's bankruptcy in Lithuania. The court held that: (i) the first past the post approach should apply in the present case in the absence of a recognised insolvency order; (ii) a creditor was entitled, absent some abuse or other countervailing considerations, prima facie to the fruits of its own diligence in beating other creditors; (iii) the previous preferential status enjoyed by EU insolvency orders had been revoked by Brexit at the end of the transitional period, evidencing a clear intention by the UK and EU that such mutual recognition was to end; and (iv) the Cross-Border Insolvency Regulations 2006, SI 2006/1030, evidenced a deliberate distinction between foreign and domestic insolvency orders and processes by clearly making them unrecognised until a recognition order was granted on application to the court. Accordingly, the TPDO was made final, subject to certain conditions and directions to enable an apparent assignment of the debt (by the claimant to another company (Dognus)) to be disclosed to other possibly affected, and to enable Dognus, the foreign administrator and the third party to make submissions on its effect, if so advised and, if so advised, on the question of whether the claimant should have disclosed the assignment at the interim TPDO stage. The court ordered that the money held by the third party should not be paid to the claimant until that process had been completed.

 

 

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OOO Nevskoe v UAB Baltijos Saliu Industrinio Perdirbimo Centras. 11 January 2023 - Size: 357Kb Download
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