During oral submissions in the hearing before the Privy Council in Cambridge Gas Counsel argued that “insolvency is different”, and the Privy Council in that case appeared to depart from established principles of private international law. The Supreme Court in Rubin considered that insolvency is insufficiently different to upset established principles of private international law, which it said would be to legislate. The Privy Council in Singularis considered that insolvency is sufficiently different for the common law to uniquely confer wide investigatory powers on insolvency practitioners.
The difference of approach between the Privy Council and the Supreme Court may stem from the impoverished statutory framework for cross border co-operation in corporate insolvencies in certain jurisdictions, including the Isle of Man, in comparison to the United Kingdom where a wide jurisdiction to co-operate is conferred by statute. The Privy Council therefore seeks to find common law powers to take the place of the statutory powers which exist elsewhere and which the relevant legislatures should, having regard to modern commercial conditions, but have not, conferred.
In the absence of such statutory intervention, it is submitted that the Isle of Man judiciary must do their best to fill the void, including boldly developing common law powers to assist in cross border insolvencies which in other jurisdictions are conferred by statute. Isle of Man law is in need of such development and, if the legislature disapproves, it can arrest such development by legislation.
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