The judicial recognition of foreign insolvency proceedings is a vital issue in the increasingly global area of restructuring. In Re Fullerton Capital Ltd (in liquidation) [2025] SGCA 11, the Court of Appeal (“CA“) granted recognition of a British Virgin Islands (“BVI“) liquidation as a foreign main proceeding under the UNCITRAL Model Law on Cross-Border Insolvency as adopted in Singapore (“SG Model Law“). In reaching its decision, the CA set out the principles for applying the presumption of centre of main interests (“COMI“).
The Respondents (the liquidators and foreign representatives of Fullerton) applied to the Singapore High Court seeking recognition, under the SG Model Law, of Fullerton’s ongoing liquidation in the BVI as a foreign main proceeding. The High Court Judge granted the application, following which the Appellant appealed against the Judge’s decision. One of the Appellant’s main grounds of contention was that Fullerton’s COMI was not in the BVI, such that the BVI Liquidation was ineligible for recognition as a foreign main proceeding under the SG Model Law.
The CA set out the following principles regarding the application of the presumption of COMI:
- Article 16(3) of the SG Model Law provides a rebuttable presumption that a debtor’s COMI is at the place of its registered office “in the absence of proof to the contrary”. This is the mandatory starting point of the inquiry into the debtor’s COMI when it is applicable.
- The presumption under Article 16(3) will not be rebutted by proving a lack of connection between the debtor and the place of its registered office, but by identifying a competing jurisdiction as the debtor’s COMI and showing how the debtor has a stronger connection to that jurisdiction.
- The standard of proof for rebutting the presumption is to establish, on the balance of probabilities, that a location other than the registered office is the debtor’s COMI.
- The relevant time for determining the COMI is the date of the recognition application.
Applying the above principles, the CA found that the starting point was that the BVI, as Fullerton’s registered office, was also Fullerton’s COMI pursuant to Article 16(3) of the SG Model Law. The Appellant failed to discharge its burden of rebutting this presumption as none of the factors it relied on had a firm evidential substratum or came close to establishing a meaningful connection with the Appellant’s proposed COMI.
The CA also dismissed the Appellant’s allegation that recognition of the BVI liquidation would be contrary to public policy due to bad faith and material non-disclosure. The CA was of the view that bad faith and material non-disclosure by a foreign representative were matters properly within the scope of the public policy exception under Article 6 of the SG Model Law. However, on the facts, there was no bad faith on the part of the Respondents to engage the public policy exception.
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