Foreign Proceedings (International Cooperation) Liquidation Rules 2012

Link to law: http://laws.bahamas.gov.bs/cms/images/LEGISLATION/SUBORDINATE/2012/2012-0083/ForeignProceedingsInternationalCooperationLiquidationRules2012_1.pdf
Published: 2012-07-31

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EXTRAORDINARY

OFFICIAL GAZETTE
THE BAHAMAS
PUBLISHED BY AUTHORITY

NASSAU 3P1 July, 2012 (A)

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FOREIGN PROCEEDINGS (INTERNATIONAL CO-
OPERATION) LIQUIDATION RULES, 2012

Arrangement of Rules

Rule
1. Citation. . .. .............................................................................................................. 2
2. Interpretation ....................................................................................................... ... 2
3. Application ofRules .............................................................................................. 2
4. Application for declaratory order .................... .. ... ................... ...... ......................... 2
5. Application of ancillary order .............................. ................................................. .3
6. Notice of foreign proceedings ............................................................................... .4

S.I. No. 83 of 2012

THE COMPANIES ACT

(Chapter 308)

FOREIGN PROCEEDINGS (INTERNATIONAL CO-OPERATION)
LIQUIDATION RULES, 2012

In exercise of the powers conferred by section 252 of the Companies Act, Ch.
308, the Liquidation Rules Committee makes the following Rules-

1. Citation.

These Rules may be cited as the Foreign Proceedings (International Co-
Operation) Liquidation Rules, 2012.

2. Interpretation.

(1) In these Rules, "the Act" means the Companies Act, Ch. 308 as amended
by the Companies (Winding up Amendment) Act, ·20 11.

(2) Words and expressions used in the Act shall have the same meaning when
used in these Rules.

(3) ,An individual rule may be cited using the abbreviation "FPLR" (Foreign
proceedings (International Co-operation) Rules.)

( 4) The forms contained in the Appendix to these Rules shall be used where
applicable, with such variations as the circumstances of the particular case
may require.

3. Application of Rules.

These Rules shall apply to every application made pursuant to Part VIIA of the
Act.

4. Application for declaratory order.

(1) An application by a foreign representative made under section 254(1Xa)
of the Act for a declaratory order recognizing his right to act on behalf of
a debtor shall be made by petition in accordance with RSC Order 9.

(2) A petition presented under this rule is required to be served only on such
persons as the Court may direct.

(3) A petition under this rule shall state-

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(a) particulars of the debtor's incorporation;

(b) the nature and place of the debtor's business;

(c) the court or other authority by which the foreign representative was
appointed;

(d) the powers and duties of the foreign representative under the law of
the place of his appointment; and

(e) the reasons for seeking a declaratory order.

( 4) A petition under this rule shall be verified by an affidavit sworn by the
foreign representative.

(5) A certified copy of the order of the court or other authority by which the
foreign representative was appointed shall be exhibited to the verifying
affidavit.

(6) A petition under this rule shall be supported by an affidavit offoreign law
which explains the powers and duties of the foreign representative under
the law of the place of his appointment.

(7) A declaratory order granted under this rule shall be in Form 1 and shall be
gazette d.

5. Application of ancillary order.

(1) An application by a foreign representative made under section 254(1)(b)-
(f) of the Act shall be made by originating summons in accordance with
RSC Order 7.

(2) An originating summons under this rule is required to be served on each
respondent.

(3) An originating summons under this rule shall be supported by an affidavit
which contains-

( a) an affidavit sworn by the foreign representative containing full
particulars of-

(i) the facts and matters referred to in rule 4(3);

(ii) the facts and matters relied upon in support of the allegation
that the respondent is a "relevant person" within the meaning
of section 198(1) of the Act;

(iii) the reasons for seeking an ancillary order against the
respondent; and

(b) an affidavit of foreign law which explains the powers and duties of
the foreign representative under the law of the place of his
appointment and addresses the matters referred to in section 255(1)
of the Act.

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(4) An ancillary order under this rule shall be in Form 2, 3, 4 or 5 as may be
appropriate.

6. Notice of foreign proceedings.

(1 ) Whenever a company which is incorporated under Part II of the Act or
registered under section 172 of the Act is made the subject of a foreign
proceeding, notice of this fact shall be filed with the Registrar and
published in the Gazette.

(2) The notice required to be filed with the Registrar shall be in Form 6 and
shall have annexed to it a certified copy of the order, notice or other
document which evidences the commencement and existence of the
foreign proceeding and, if such document is in a language other than
English, an English translation of it.

(3) The notice in Form 6 shall be published without its annexures in the
Gazette not later than 21 days after the date on which notice was filed
with the Registrar.

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APPENDIX-PRESCRIBED FORMS

FormNo.l

Declaratory Order

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMERCIAL DIVISION

The Honourable Mr. Justice

IN THE MATTER OF Part VIIA of the Companies Act Ch. 308

AND IN THE MATTER OF [state name of debtor]

DECLARATORY ORDER

20

No.

UPON hearing counsel for [state name and address of foreign representative] upon his
petition dated [state date] for a declaratory order recognising his right to act in The
Bahamas on behalf of or in the name of [state name of debtor] (the "Debtor").

AND UPON hearing counsel for [any persons upon whom the petition was served]

AND UPON reading [set out details of all the relevant affidavits]

IT IS ORDERED AND DECLARED that [name of foreign representative] is hereby
recognised as the only person entitled to act in The Bahamas on behalf of [or in the name
of] the debtor.

Dated the

Filed the

day of

day of

20_

20_

The Honourable Mr. Justice [name of assigned Judge]

JUDGE OF THE SUPREME COURT

This Order was filed by [state name, address and contact details of the counsel and
attorneys acting on behalf of the petitioner].

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FormNo.2

Injunction

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMERCIAL DIVISION

The Honourable Mr. Justice

IN THE MATTER OF Part VIIA of the Companies Act, Ch. 308

AND IN THE MATTER OF [state name of debtor]

BETWEEN [State name of foreign representative)

AND: [
Defendant

INJUNCTION

20

No.

Plaintiff

UPON hearing counsel for the parties upon the Plaintiff's originating summons dated [state
date) for an injunction restraining the Defendant from commencing proceedings against
[state name of debtor]. ·

AND UPON reading [set out details of all the relevant affidavits]

IT IS ORDERED that:

1. The Defendant, whether by its directors, officers, agents or otherwise, is hereby
restrained from commencing any proceedings agamst the Defendant for [state nature of
threatened proceedings] without the prior leave of the Court.

2. (Further or other directions]

Dated the

Filed the

day of

day of

The Honourable Mr. Justice [name of assigned Judge]

JUDGE OF THE SUPREME COURT

20_

20_

This Order was filed by [state name, address and contact details of the counsel and
attorneys acting on behalfofthe petitioner].

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FormNo.3

Order for A Stay of Enforcement

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMERCIAL DIVISION

The Honourable Mr. Justice [

IN THE MATTER OF Part VIIA of the Companies Act, Ch. 308

AND IN THE MA ITER OF (state name of debtor]

BETWEEN [State name of foreign representative]
Plaintiff

AND [
Defendant

ORDERFORASTAYOFENFORCEMENT

20

No.

Upon hearing counsel for the parties upon the Plaintiff's originating summons dated [state
date] for a stay of enforcement in respect of the judgment dated [state date] and given
against the debtor in cause number [ ] .

AND UPON reading [set out details of all the relevant affidavits]

IT IS ORDERED that:

1. No enforcement proceedings shall be commenced [or no further steps shall be taken in
respect of enforcement proceedings already commenced] in respect of the judgment dated
[state date] made against the debtor in cause number []without prior leave of the Court.

2. [Further or other directions]

Dated the

Filed the

day of

day of

The Honourable Mr. Justice [name of assigned Judge]

JUDGE OF THE SUPREI\IfE COURT

20_

20_

This Order was filed by [state name, address and contact details of the counsel and
attorneys acting on behalf of the petitioner].

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Form No. 4

Order for Examination

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMERCIAL DIVISION

The Honourable Mr. Justice [

IN THE MATTER OF Part VIIA of the Companies Act, Ch. 308

AND IN THE MATTER OF [state name of debtor]

BETWEEN [State name of foreign representative]
Plaintiff '·

AND: [State name of examinee]

ORDER FOR EXAMINATION

20

No.

Defendant

UPON hearing counsel for the parties upon the Plaintiff's originating summons dated [state
date] for an order that the Respondent be examined about the business or affairs of [state
name of debtor]. ·

AND UPON reading [set out details of all the relevant affidavits]

IT IS ORDERED that:

1. The Respondent shall deliver up to the Plaintiff all of the documents specified in the
Schedule One to this order on or before [state date].

2. The Respondent shall attend at [state address] on [state date) at [state time] (or at such
other place and on such other date and time as may be agreed with the Plaintiff) to be
examined orally by or on behalf of the Plaintiff about the business and affairs of the Debtor
more particularly described in Schedule 1\vo to this order.

3. The examination may be adjourned from time to time. Each session of the examination
shall last no more than four (4) hours and the examination shall not last longer than [state
time] in total without a further order of the Court.

4. [further or other directions]

Dated the

Filed the

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day of

day of

20_

20_

The Honourable Mr. Justice [name of assigned Judge]

JUDGE OF THE SUPREME COURT

This Order was filed by [state name, address and contact details of the counsel and
attorneys acting on behalf ofthe petitioner].

Form No. 5

Order for Delivery Up of Property

CO:MivfONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMERCIAL DIVISION

The Honourable Mr. Justice [

IN THE MATTER OF Part VIIA of the Companies Act, Ch. 308

AND IN THE MATTER OF [state name of debtor]

BETWEEN [State name of foreign representative]
Plaintiff

20

No.

AND: [State name of examinee] Respondent

ORDER FOR DELIVERY UP OF PROPERTY

UPON hearing counsel for the parties upon the Plaintiff's originating summons
dated [state date] for an order that the Respondent deliver up to the Plaintiff property
belonging to [state name of debtor).

AND UPON reading [set out details of all the relevant affidavits]

IT IS ORDERED that:

1. The Respondent shall deliver up to the Plaintiff all of the property belonging to [state
name of debtor] specified in this Schedule to this order on or before [state date].

2. [Further or other directions about the method by which the property is to be delivered or
title to the property transferred].

Dated the day of 20_

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Filed the day of

The Honourable Mr. Justice [name of assigned Judge)

JUDGE OF THE SUPREME COURT

20_

This Order was filed by [state name, address and contact details of the counsel and
attorneys acting on behalf of the petitioner].

Form No. 6

Notice of Foreign Proceedings

[Name of company]

Registration No. __ _

To: The Registrar of Companies

TAKE NOTICE that the above-named Company was made the subject of (describe the
foreign procee,ding] for its liquidation on [state commencement date] by order of [ident~fy
the court or other authority]. Certified copies of [the relevant orders, notices or other
documents evidencing the commencement and existence of the foreign proceedings].

AND FURTHER TAKE NOTICE that [state name of foreign representative) of [state
address and contact details] has been appointed [identify the nature of any appointment
such as a trustee in bankruptcy, official liquidator or receiver).

Dated this day of 20_.

[Signature of Foreign Representative or Director, as the case may be]

[Full name, address and contact details of the person filing this form]

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Dated the 3151 day of July, 2012.

Signed
MICHAEL BARNETT

Chairman of Liquidation Rules Committee
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