Nordic Trustee A.S.A. v OGX Petróleo e Gás S.A.

In an important decision, Snowden J. has given guidance on the obligation of full and frank disclosure on without notice applications for recognition of foreign insolvency proceedings under the UNCITRAL model law and Cross-Border Insolvency Regulations 2006.

In July 2015, the respondent (OGX) applied without notice to Mann J. for an order recognising its Brazilian insolvency proceedings, and staying proceedings in England and Wales. The only creditor affected by the order was the applicant (Nordic), which had recently commenced an LCIA arbitration against OGX, arising out of a charterparty in respect of an oil production vessel.

Nordic applied to set aside Mann J.’s order, on the basis it had been obtained without making proper disclosure.  In particular, it argued that OGX had been obliged to inform Mann J. that Nordic’s claims were not caught by the Brazilian insolvency, but that it had failed to do so.

Snowden J set aside Mann J.’s order, and his judgment affirms that the obligation of full and frank disclosure applies to applications without notice for recognition orders.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Ch/2016/25.html

Andreas Gledhill QC and Andrew Scott appeared for the successful applicants, Nordic.