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In the recent case of Emerald Pasture Designated Activity Co v Cassini SAS  EWHC 2443 (Ch), the High Court considered whether the obligation under a loan agreement to provide information to the claimants (the Lenders) continued after the defendant (the Borrower) had entered French insolvency proceedings (safeguarding proceedings) or was caught by the moratorium which applies to safeguarding proceedings.
On 28 March 2019 the parties entered into a senior facility agreement (the Facility Agreement) under which the Lenders provided the Borrower a term loan facility and revolving facility in an aggregate amount of €573 million in addition to an (undrawn) incremental facility of €114 million. The Facility Agreement was governed by English law and had an exclusive jurisdiction clause in favour of the English courts.
The Borrower entered safeguarding proceedings in France on 22 September 2020, which were main proceedings under the Recast European Insolvency Regulations (EU 2015/848) (the Recast Regulations (applicable as they were opened before 31 December 2020).
Subsequently, the Lenders requested information from and access to books and records of the Borrower under the Facility Agreement in order to resist a potential restructuring plan they were concerned the Borrower would propose that which would favour its shareholders over its creditors.
The Borrower refused to comply with the requests and the Lenders brought Part 8 proceedings in England seeking a declaration that an obligation to provide information under the Facility Agreement was enforceable (the Claim).
In response, the Borrower applied to the same court for a declaration that the English courts had no jurisdiction to deal with the Claim which derived from the French insolvency proceedings and as such should be heard by the French courts under Article 6(1) Recast Regulations. The application came before Mr Justice Zacaroli who, on 16 July 2021, held that the Borrower's obligation to provide information derives from civil law (as opposed to under the insolvency rules) and dismissed the application (as discussed in our article here).
The Borrower argued that the effect of the French insolvency proceedings was to render the obligation to provide information unenforceable.
The Lenders’ position was that although there was a stay of claims and a prohibition on the termination of contracts due to the commencement of the safeguarding proceedings, the information clause was not affected.
Each party provided expert evidence as to French law in support of their respective positions, however, there was no joint expert statement.
There were two issues before the court:
- to determine what French law was as to the enforceability of the information provisions in the Facility Agreement, where safeguarding proceedings have been commenced after the Lenders have advanced the loan monies; and
- if the decision were made in the Lenders' favour, whether the court should exercise its discretion to grant declaratory relief.
The Claim came before His Honour Judge Kramer on 27 August 2021 who decided that the information obligation under the Facility Agreement continued after the safeguarding proceedings had been opened and granted the declaratory relief sought, including a declaration as to breach of the information clause.
The judge observed that it is for the party to prove foreign law, which is treated as a matter of fact, by way of expert evidence (which can come from either legal practitioners or academic lawyers). Where such evidence conflicts, the court will look at the sources as it does in relation to other evidence.
The judge considered the expert evidence at length and particularly noted that:
- parties agreed that the Facility Agreement was a ‘non-ongoing contract’ as at the start of the safeguarding proceedings;
- French contract law is based on the general rule that contracts shall be strictly performed. Where a fundamental principle is to be derogated from, the derogation and its extent are made clear;
- pursuant to French insolvency law, when a company commences safeguarding, there is a moratorium on proceeding with claims for payment or terminating contracts for breach. There is no mention that such moratorium applies to obligations to provide information;
- there is no authority which says that non-ongoing contracts terminate upon the commencement of safeguarding proceedings (or that non-monetary obligations cease to be enforceable);
- a contrario interpretation can be applied to exceptions to the rule but not the rule itself;
- the court has jurisdiction to grant declaratory relief under section 19 of the Senior Courts Act 1981 and the relevant test whether to exercise the discretion is set out in the case of Bank of New York Mellon London Branch v Essar Steel India Limited  EWHC 3177.
The decision provides a helpful reminder that foreign law must be proved as a matter of fact as any other evidence. It also includes interesting analysis of the principles upon which French law is founded, and highlights the expertise and ability of English courts to deal with international disputes, which is why parties from a wide range of jurisdictions insist on English jurisdiction and governing law clauses in contracts (and financial contracts in particular).