UK Law and Practice Contributed by: Fergus Wheeler, Paul Yin, Tracy Liu and Medha Vikram, Latham & Watkins
Asset level security is increasingly rare and usu - ally limited to subsidiary level bank accounts and intellectual property. Enforcement typically involves an insolvency officeholder, being either: • an FCR appointed out of court under the security document; or • an administrator appointed out of court if lenders have a “qualifying floating charge” over most assets, or by court application. An FCR, appointed by lenders that hold a fixed charge over specified debtor assets, has enforcement powers under the security docu - ment, such as taking custody or managing or selling assets to satisfy secured debt. An administrator has broader legal duties to all creditors. Administration is a more public pro - cess and triggers a moratorium. With adequate planning and some board or management co-operation, enforcement sales can often be pre-packaged, minimising the taint of insolvency. 6.2 Foreign Law and Jurisdiction Choice of Foreign Law Contracting parties can choose the governing law and jurisdiction for any contractual disputes. The choice of law may mirror the jurisdiction. If the governing law differs from the jurisdic - tion hearing the dispute, the foreign court may require expert evidence on the relevant law. However, English courts will not uphold a choice of law for contractual obligations if to do so would be inconsistent with or overridden by Regulation (EC) No 593/2008 (Rome I) or for non-contractual obligations if it conflicts with
Regulation (EC) No 864/2007 (Rome II), both as amended by the UK’s post-Brexit The Law Applicable to Contractual Obligations and Non- Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019. Submission to a Foreign Jurisdiction Usually when parties agree to submit disputes to a foreign court’s exclusive jurisdiction, a party cannot bring proceedings in England and Wales in breach of that agreement. If parties choose non-exclusive jurisdiction, this allows disputes to be heard in the jurisdiction specified in the clause, or the parties may be entitled to take disputes to other jurisdictions. If a claim is filed in England and challenged for jurisdiction, the English court will decide if it is competent to determine the dispute. Waiver of Immunity The enforcement of a waiver of immunity clause depends on its wording. The courts of England and Wales take a restrictive approach to state immunity under the State Immunity Act 1978 (the “SIA”), which confers general immunity from English court jurisdiction on foreign states with certain exceptions. These exceptions include where the State agrees to submit to the juris - diction or to submit a dispute to arbitration and the relevant court proceedings relate to that arbitration. The SIA also provides immunity from execution, with exceptions including for written consent to execution or commercial transac - tions involving property used for commercial purposes. 6.3 Foreign Court Judgments The enforcement of foreign judgments in the UK depends on the applicable legal regime, which varies according to the jurisdiction of the origi - nating judgment.
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