Successfully obtained recognition of Swiss liquidation

The DLA Piper Australia restructuring team has successfully obtained recognition of the Swiss liquidation of Amoma Sarl (In Liquidation) (Amoma) as a foreign main proceeding pursuant to the Cross-Border Insolvency Act 2008 (Cth) and the UNCITRAL Model Law on Cross-order Insolvency 1997. The Canton of Geneva Bankruptcy Office (GBO) was recognised as Amoma's foreign representative in Australia.

This appears to be the first foreign main proceeding recognised in Australia where there are no physical assets in Australia, rather the liquidation estate is comprised of a potential claim against Amoma's former business counterparty. The recognition provides standing to the foreign representative to prosecute Amoma’s claim in Australia should they determine to do so.

The recognition was contested, and the argument was put that the GBO had not proven that recognition was necessary for the foreign representative to prosecute this litigation in Australia, because (so the argument ran) once the claim is filed in Australian courts Amoma and its foreign representative would have the full benefit of the usual court processes including discovery.

However, the presiding judge, Justice McEvoy, rejected those arguments, and decided in favour of Amoma and its foreign representative GBO, finding that it was reasonable and necessary to grant the foreign representative the same powers as a liquidator in Australia would have, including to examine witnesses, take evidence and obtain information, to allow them to assess the merits of bringing the claim before determining whether to do so. Recognition also provides standing to Amoma and its foreign representative GBO to bring the claim in Australia, should they determine to do so.

DLA Piper restructuring partner in Australia Lionel Meehan led the team that acted for Amoma and GBO, assisted by special counsel Amy Nolan, and solicitors Morgan Hartley-Marschner, David Suric and Mahindra Ramani.