Foreign insolvency judgment enforcement - a fiction?

Rubin & Lan v Eurofinance led us to say in August 2010 that the Court of Appeal had taken a novel approach founded on the principles of modified universalism, developing the common law and allowing enforcement of a foreign insolvency judgement when an ordinary foreign judgement could not have been enforced.

Permission to appeal the decision is currently being sought from the Supreme Court. In anticipation of that appeal a critical commentary on the Court of Appeal decision concludes that:

"The Supreme Court must not allow the basis for enforcing foreign insolvency judgments to be floated on a magic carpet of fiction."

The commentary's author opines that:

"The Court of Appeal's reasoning relies on pure legal fiction that bankruptcy proceedings are neither in rem nor in personam. The decision is in the final analysis a most unhelpful development of the common law."

 For more details, see L C Ho, 'Recognition Born of Fiction – Rubin v Eurofinance' [2010] J.I.B.L.R. 579.

It will be for the Supreme Court to determine whether the common law should have undergone such development.