The fact that the receiver appointed for Hanjin, Mr Tai-Soo Suk,
quickly took steps to extend to the UK the protection afforded by
the Korean rehabilitation proceedings, was of little surprise, as
England is likely to be the forum where the majority of creditors
will have to bring proceedings to recover debts or claim
damages for breach of contract.
While the recognition of Hanjin's Korean rehabilitation
proceedings, on 6 September, by the Companies Court in London,
provides the receiver with breathing space in which to gather in
Hanjin's assets and ascertain whether the company can be saved
or, alternatively, be put into formal liquidation, it leaves
Hanjin's creditors, who are bound to bring claims in London,
with little right of recourse in the contractually agreed
The UK recognition order carves out a number of claims from the
moratorium on English proceedings (both in the High Court and in
London arbitration), and provides the receiver or the Companies
Court in London with the ability to give permission to waive the
stay. However, the circumstances in which the stay will be
permitted to be lifted are limited, and consequently, creditors are
faced with the prospect of registering their claims in the Korean
This gives rise to interesting questions, not least around
whether submitting a claim in the rehabilitation proceedings in
South Korea subverts the contractually agreed English law and
jurisdiction clause, and the ability of the South Korean Court to
deal with disputes arising out of a breach of an English law
contract, and the applicable measure of damages.
Outside the UK, there are jurisdictions in which a creditor may
be able to assert a lien or obtain an arrest of a Hanjin vessel in
order to improve their position vis-ŕ-vis other
creditors. But as Hanjin take additional steps to obtain
insolvency protection around the world, creditors are now faced
with a race against time.
Witnesses can, in various circumstances, be subpoenaed by the Courts of overseas jurisdictions to attend to give evidence by way of depositions within that jurisdiction. So why not take that one step further and ask a foreign court to subpoena the witness to give evidence by live satellite video link to a Court in London? This would be the next best thing to having the witness present in Court. Indeed, the Commercial Court is increasingly amenable to evidence being given in this way (albeit on a
Gratuitous alienation is one of the most familiar parts of our law and yet relatively rarely seems to come to court. That may be because the law is so well understood that there is little left to debate...
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