Miscellaneous: Part 25 of the Companies Bill

Miscellaneous: Part 25 of the Companies Bill

Contents of Presentation 1. Part 25 Miscellaneous 2. Chapter 1 provisions concerning foreign insolvency proceedings (including those covered by the Insolvency Regulation) 3. Chapter 2 other miscellaneous provisions 1

Part 25 Miscellaneous 24 sections of law in 2 chapters Provisions are set out in this Part that do not fall naturally into any other Part, including provisions concerning foreign insolvency proceedings. 2

Chapter 1 provisions concerning foreign insolvency proceedings (including those covered by the Insolvency Regulation) S 1406 states that, in addition to windings up, ss1409-1418 also apply to receiverships (Part 8), reorganisations, acquisitions, mergers and divisions (Part 9) and examinerships (Part 10). A winding-up order from a non-eu state or Denmark may be enforced by the High Court as if the order had been made by the High Court (s 1407). 3

Chapter 1 provisions concerning foreign insolvency proceedings S 1408 explains that the purpose of ss1409-1418 is to reenact the provisions that gave effect to the Insolvency Regulation, other than those in relation to insolvency proceedings opened in Ireland (being already contained in Chapter 15 of Part 11). A liquidator appointed in another Member State who wishes to have his or her appointment published in the State must deliver to the Registrar a certified copy of the judgment or decision appointing him/her (s 1409) S 712 (publication in relation to insolvency proceedings in Ireland) shall apply equally to such proceedings outside the State (s 1410) 4

Chapter 1 provisions concerning foreign insolvency proceedings Where a liquidator wishes to request that a judgment opening insolvency proceedings be publicly registered, it shall do so to the Registrar (s 1411) An insolvency judgment may be declared enforceable by the Master of the High Court on completion of the relevant formalities, and enforcement order may be enforced by the High Court as if it were a judgment of that court (s 1412) If interest would be recoverable on a sum of money payable under a judgment, the enforcement order under s 1412 will provide for payment of interest; the order may also provide for payment of reasonable costs (s 1413). 5

Chapter 1 provisions concerning foreign insolvency proceedings An amount payable in Ireland by virtue of an enforcement order on an insolvency judgment must be paid in euro (s 1414) Any request for measures to secure and preserve any of the debtor s assets in the State should be made to the High Court, which may grant the measures provided it is within its jurisdiction to do so (s 1415) Proceedings instituted in the State by a liquidator under Article 18 of the Insolvency Regulation may be heard by the judge assigned to the circuit or district of the Circuit or District Court in which the defendant lives or carries on business (s 1416) 6

Chapter 1 provisions concerning foreign insolvency proceedings S 715 (whereby the liquidator may require that a claim in another language be translated into Irish or English) shall apply in relation to insolvency proceedings outside the State (s 1417) It will be for the High Court to determine whether judgments referred to in Article 25(1), or insolvency proceedings or judgments referred to in Article 26, should not be recognised or enforced on the grounds mentioned in those provisions (s 1418). 7

Chapter 2 other miscellaneous provisions The acquisition of an interest in shares or debentures in a company registered in the State shall be deemed to be a consent by that person to the disclosure of any information required under the Bill to be disclosed (s 1419) The provisions on schemes of arrangement found in Chapter 1 of Part 9 shall apply to any company liable to be wound up under the Bill (s 1420) Any enactment providing for winding up under the Companies (Consolidation) Act 1908 or enactments repealed by that Act shall continue in force (s 1421). 8

Chapter 2 other miscellaneous provisions S 406 (prohibition on a person deemed to be subject to a disqualification order from acting in relation to an audit) shall apply to any company within the meaning of Chapter 4 of Part 14, any friendly society and any industrial and provident society (s 1422). A statutory auditor may draw or prepare any document for the purposes of the Bill other than a deed or a constitution (including a memorandum and articles of association) of a company (s 1423). 9

Chapter 2 other miscellaneous provisions Partnership generally prohibited from having more than 20 members; exceptions are solicitors and accountants firms, horse-breeding partnerships, partnerships for providing finance facilities for industrial or commercial activities, an investment limited partnership within the meaning of the Investment Limited Partnership Act 1994 and such other partnerships as the Minister may specify by order having consulted with the CLRG (s 1424) A banking partnership is prohibited from having more than 10 members (s 1425). 10

Chapter 2 other miscellaneous provisions In the case of a licensed bank registered after 15 August 1879, the statutory financial statements shall be signed by the secretary and either all the directors of the company or three of them (s 1426) Ss1392 (circumstances in which investment company may be wound up by the court) and 1393 (restoration of investment company by the court) shall apply also to UCITS (Undertakings for Collective Investment in Transferable Securities) (s 1427). 11

Chapter 2 other miscellaneous provisions Nothing in Chapters 1 or 2 of Part 9 (on schemes of arrangement and acquisitions) will prejudice the jurisdiction of the Irish Takeover Panel with respect to a proposed compromise or scheme of arrangement (s 1428) A person shall not act as a public auditor for the purposes of the Industrial and Provident Societies Acts or the Friendly Societies Acts unless the person is a member of a recognised body of accountants and is approved by that body to so act (s 1429). 12

For Further Information Contact Dr Tom Courtney, Partner tom.courtney@arthurcox.com Direct line 016180584 Dáibhí O Leary, Associate daibhi.oleary@arthurcox.com Direct line 016181120 or your usual Arthur Cox contact This document contains a general summary of developments and is neither a complete nor definitive statement of the law. Specific legal advice should be obtained before taking action. 13

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