Created Date: 07 May 2025
创作日期07 May 2025
Restructuring and insolvency

Singapore Apex Court recognises BVI as the COMI of a BVI registered company – an examination of article 16(3) of the Model Law

新加坡最高法院承认英属维尔京群岛为英属维尔京群岛注册公司的主要利益中心 — 对《示范法》第 16(3) 条的审查

In Re Fullerton Capital Limited (in liquidation) [2025] SGCA 11, the Singapore Court of Appeal has affirmed the importance of a debtor’s registered office (in this case in the BVI) as its centre of main interests (“COMI”). The Court of Appeal considered (a) the operation of the presumption of a debtor's COMI under the UNCITRAL Model Law on Cross-Border Insolvency 1997 (the "Model Law") which has the force of law in Singapore pursuant to the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (the “SG Model Law”); and (b) the relevant timing for assessing a debtor's COMI.

Fullerton Capital Limited (in liquidation)([2025] SGCA 11)一案中,新加坡上诉法院确认了债务人注册办事处(在本案中位于英属维尔京群岛,以下简称“BVI”)作为其主要利益中心(以下简称“COMI”)的重要性。上诉法院审议了以下事项:(i) 1997 年《联合国国际贸易法委员会跨境破产示范法》(以下简称《示范法》)项下的债务人COMI推定原则的适用情况,该《示范法》依据 2018 年《破产、重组和解散法》(2020 年修订版)在新加坡具有法律效力(以下简称“《新加坡示范法》”);以及 (ii) 用于评估债务人COMI的相关时间点。

Facts

Fullerton, the respondent company, was put into insolvent liquidation on 12 October 2022 by order of the BVI court and the liquidators were appointed (“BVI Liquidation”). Its registered office was in the BVI. 

The striking feature of this case was the sheer paucity of evidence on Fullerton’s commercial activities. Fullerton had only been involved in a single business transaction. It had contracted with a company, ostensibly based in Hong Kong, which had then commenced a fraudulent claim against Fullerton in the Singapore courts.

Fullerton’s liquidators applied to the Singapore courts to have the BVI Liquidation recognised as a foreign main proceeding, and sought disclosure and examination orders against the relevant persons, including (a) Fullerton's current and former directors; (b) the appellant (a former director and shareholder of Fullerton) and Fullerton's former employee; (c) financial institutions that had provided banking and financial services to Fullerton; and (d) Fullerton's former solicitors. The appellant argued that Fullerton's COMI was in China, Hong Kong or Singapore.

Although the appellant also relied on the public policy ground to argue that the liquidators acted in bad faith or failure to make full and frank disclosure of material facts, the Singapore Court of Appeal held that the public policy ground was not engaged.

The analysis of the Singapore Court of Appeal on the issue of COMI is set out below.

Presumption applies even if company has no commercial activity

In an ordinary case where the debtor’s registered office is known, article 16(3) of the SG Model Law would apply as the starting point. There is a rebuttable presumption that the debtor’s COMI is at the place of its registered office.

Having confirmed that it was obliged to apply the presumption, what then did the court make of the fact that Fullerton had not carried on any activities in the BVI?

The court observed that a lack of evidence that the debtor carries out any activities at the place of its registered office does not allow it to disapply the presumption. However, the presumption is more easily rebuttable by evidence that the debtor conducts administration of its interests in a different place from that of its registered office.

The burden of proving the place of a debtor’s COMI rests on whichever party asserts that it is at a different place from the debtor’s registered office. The party bearing the burden should not be setting out to prove a negative (i.e., that the registered office is not the COMI) but a positive (i.e., that a different jurisdiction is the COMI).

Relevant time for determining COMI

While the case law had consistently affirmed that the time for assessing a debtor's COMI was the time of the filing of the application for recognition, it was also said that the court's focus nonetheless ought to be on the debtor's position prior to the commencement of the foreign proceeding and the appointment of the debtor's foreign representatives, i.e. the liquidators.

In this case, having confirmed that the time for assessing a debtor's COMI was the time of the filing of the application for recognition, the Court of Appeal also expressed the view that all factors had to come into play. If a foreign representative’s activities had been undertaken over a long period of time, they should not be artificially excluded from the COMI analysis. Instead, the court would take a measured approach of placing historical facts on a sliding scale of relevance, such that their weight may be calibrated based on their relevance to the issue of the debtor’s COMI at the relevant time. 

Application

On the facts, there was no evidence that the appellant could marshal to rebut the presumption that BVI was Fullerton's COMI and support a finding that the COMI is China, Hong Kong or Singapore. The court declined to give any weight to the factors submitted by the appellant for reasons set out below.

  • Location of Fullerton’s control and direction: It was appropriate to look to Fullerton’s foreign representatives (who had been appointed since 2022) rather than any of Fullerton’s past directors as the persons having control and direction of Fullerton. Fullerton had not engaged in any business activities since restoration other than the ongoing administration of the BVI Liquidation. Given this, it was unrealistic to assess Fullerton’s control and direction at the relevant time by considering any person other than the foreign representatives.
  • Location of Fullerton's creditors: There was however insufficient evidence to find that the creditor was indeed based in Hong Kong.
  • Location of Fullerton’s operations: There was insufficient evidence of Fullerton’s operations as most of the indicators relied on by the appellant were disputed and, in any event, did not pull clearly towards any particular jurisdiction.

Commentary

It is not unusual for a BVI company to have little to no commercial transactions during its lifetime. In cases where none of the usual COMI factors comes close to establishing anything resembling a meaningful connection with any jurisdiction, the Model Law provides a simple yet elegant solution in the form of a presumption in favour of the debtor’s registered office.

The Singapore Court of Appeal’s guidance on the robust framework provided by the SG Model Law is welcomed. It has demonstrated the Singapore's court's willingness to recognise and assist BVI court appointed liquidators, specifically by granting the relief requested by the liquidators in the form of disclosure and examination orders. 

The judgment also reinforces that position that substantive insolvency proceedings could be commenced in the BVI (which is not a Model Law jurisdiction) and the liquidators would still be able to seek Model Law recognition elsewhere, such as Singapore. 

案情

被诉公司 Fullerton 2022 10 12 日根据 BVI 法院命令进入破产清算程序,并且已委任清算人(以下简称“BVI 清算程序”)。该公司注册办事处位于 BVI

本案的突出特点是,关于 Fullerton 商业活动的证据极其匮乏。Fullerton 仅参与过一宗商业交易。Fullerton 与一家表面上总部位于中国香港的公司签订了合同,该公司随后在新加坡法院针对 Fullerton 提出了关于欺诈的索赔。

Fullerton 的清算人向新加坡法院提出申请,请求其承认 BVI 清算程序为外国主要程序,并要求针对相关人员发出披露令和审查令,包括 (a) Fullerton 的现任和前任董事;(b) 上诉人(Fullerton 的前任董事兼股东)和 Fullerton 的前雇员;(c) Fullerton 提供银行和金融服务的金融机构;以及 (d) Fullerton 的前任事务律师。上诉人辩称,Fullerton COMI位于中国内地、中国香港或新加坡。

尽管上诉人还援引了公共政策,辩称清算人存在恶意行为或未能充分、坦诚地披露重要事实,但新加坡上诉法院裁定,基于公共政策的上诉理由不成立。

新加坡上诉法院针对COMI问题作出了如下分析。

即使公司未开展商业活动,推定原则也仍然适用

通常情况下,如果债务人注册办事处为已知信息,则《新加坡示范法》第 16(3) 条将作为推定起点适用。债务人的注册办事处被推定为其COMI,但该推定可被推翻。

在确认必须适用该推定后,法院如何看待 Fullerton 未在 BVI 开展任何活动这一事实?

法院认为,即使缺乏证据表明债务人在其注册办事处所在地开展了任何活动,也不会导致该推定不适用。但是,如果有证据表明债务人在其注册办事处所在地以外的地方进行了权益管理,则该推定更容易被推翻。

证明债务人COMI所在地的举证责任在于主张该债务人COMI所在地并非其注册办事处的一方。承担举证责任的一方不应着手证明消极事实(注册办事处并非COMI),而应证明积极事实(COMI位于其他司法管辖区)。

用于确定COMI的相关时间点

虽然判例法一贯认为,债务人COMI评估时间即为承认申请提交时间,但也有人认为,法院仍应关注债务人在外国程序启动及其外国代表(即清算人)被委任之前的状况。

在本案中,上诉法院确认债务人COMI评估时间即为承认申请提交时间,并表示必须将所有因素纳入考量。如果外国代表所开展的活动已持续很长一段时间,则不应人为地将其排除在COMI分析之外。相反,法院应采取一种审慎的方法,根据相关性对历史事实赋予不同的重要性,以便根据其与债务人在相关时间点的COMI这一问题的相关性来调整其权重。

申请

根据案情,并无证据表明上诉人能够推翻 Fullerton COMI位于 BVI 这一推定,也没有证据能够支持其COMI位于中国内地、中国香港或新加坡这一认定。法院就上诉人提出的各项因素裁定如下。

  • 对 Fullerton 实施控制和指挥的地点:将 Fullerton 的外国代表(自 2022 年起委任)而非 Fullerton 的任何前任董事视为有权对 Fullerton 实施控制和指挥的人员乃恰当做法。自恢复注册以来,除了正在进行的 BVI 清算程序外,Fullerton 未曾参与任何商业活动。鉴于此,在评估 Fullerton 在相关时间点的控制和指挥情况时,将外国代表以外的其他人士作为考量依据是不现实的。
  • Fullerton 债权人所在地:没有足够的证据证明债权人确实位于香港
  • Fullerton 经营所在地:由于上诉人所依据的大多数指标均存在争议,并且这些指标在任何情况下均未明确指向任何特定司法管辖区,因此,没有足够的关于Fullerton经营的证据。

评论

BVI 公司在其存续期间几乎没有开展商业交易的情况并不罕见。在常见的COMI确定因素均无法证明其与任何司法管辖区建立了任何有意义联系的情况下,《示范法》提供了一个简单但巧妙的解决方案,即推定债务人的注册办事处为其COMI

新加坡上诉法院就《新加坡示范法》所提供的稳健框架所作出的指导深受认可。这表明新加坡法院愿意承认 BVI 法院所委任的清算人并为其提供协助,具体而言,在本案中,新加坡法院为此类清算人提供了披露令和审查令等救济措施。

该判决还进一步明确了这一立场:即便在 BVI(非《示范法》管辖范围)启动实质性破产程序,清算人仍可在其他地区(例如新加坡)寻求《示范法》框架下的承认。

Please note that this briefing is intended to provide a very general overview of the matters to which it relates. It is not intended as legal advice and should not be relied on as such. © Carey Olsen 2025