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Published online by Cambridge University Press: 16 January 2009
Until recently it was possible to state with some confidence that English courts have no jurisdiction to wind up a foreign unregistered company which, though carrying on business in England through agents or otherwise, has no place of business here. The term “place of business” was given a very extended meaning in the course of time and came to include the premises of a hotel where the directors of the foreign company stayed annually over a number of years for a period lasting from a few weeks to several months, and from which they conducted their business while in England. However, in 1950, Harman J., in Banque des Marchands de Moscou (Koupetschesley) (in liquidation) v. Kindersley, decided that a foreign unregistered company which has assets in England can be wound up by English courts, even if it has no place of business in England otherwise than through agents. The Court of Appeal upheld the decision of Harman J. but Sir Raymond Evershed M.R., in whose judgement the other members of the court concurred, took a different view of the facts. He found that even if the Banque des Marchands de Moscou had no branch or specific place of business in England, it had nevertheless a place of business in England in the extended meaning given to this term by Cohen J. in Rabenek's Case, seeing that one of its directors had transacted business for the bank in England. This reason would have sufficed to dispose of the question whether English courts, in the circumstances, had jurisdiction to wind up the foreign company.
1 A foreign unregistered company is a company incorporated abroad, which is not registered under Part X of the Companies Act, 1948. See below, note 40. Dicey, onflict of Laws (6th ed., 1949), p. 291, rule 46 (3); p. 293, rule 47 (3); Graveson, Conflict of Laws, p. 233; Palmer, Company Law (19th ed., 1949), p. 450; Halsbury, , Laws of England, Vol. 5 (2nd ed., rev. 1949), pp. 942–43Google Scholar, No. 1599; not clear: Wolff, Private International Law (2nd ed., 1950), p. 91; Schmitthoff, Conflict of Laws (2nd ed., 1948), p. 340.
2 Re Tovarishestvo Manufactur Liudvig-Rabenek [1944] Ch. 404, at p. 409Google Scholar, per Cohen J. (as he then was).
3 [1950] 2 All E.R. 105; 66 T.L.R. (Pt. 1) 1147.
4 [1951] 1 Ch. 112; (1950) 66 T.L.R. (Pt. 2) 654; [1950] 2 All R.R. 549.
5 Re Tovarishestvo Manufactor Liudvig-Rabenek [1944] Ch. 404.Google Scholar
6 Re Tovarishestvo Manufactor Liudvig-Rabenek [1944] Ch. 404, at p. 409.Google Scholar
7 (1850) 19 L.J.Ch. 474.
8 (1950) 19 L.J.Ch. 388.
9 [1944] Ch. 404.
10 (1885) 29 Ch.D. 219.
11 Formerly Companies Act, 1929, s. 338 (1) (d).
12 Formerly Companies Act, 1929, s. 338 (2).
13 Submission, and not necessarily presence, is sufficient to satisfy the requirement of jurisdiction conferred by special statute. See Re Dulles' Settlement Trusts [1950] 2 All E.R. 1013, at p. 1021Google Scholar, per Asquith L.J.
14 (1850) 19 L.J.Ch. 474.
15 (1850) 19 L.J.Ch. 388.
16 At pp. 475–76 (my italics).
17 11 & 12 Vict. c. 45, s. 5 (7) and (8).
18 (1849) 3 De G.M. & Sm. 127.
19 (1850) 19 L.J.Ch. 260.
20 (1850) 19 L.J.Ch. 388.
21 See now s. 399 (1). (4) and (5) of the Companies Act, 1948.
22 Re Dendre Valley Ry. v. Canal Co., ex p. Moss (1850) 19 L.J.Ch. 474; Re Madrid and Valencia Ry. (1849) 3 De G.M. & Sm. 388; Re Union Bank of Calcutta (1850) 19 L.J.Ch. 388. See above III (1).
23 (1868) L.R. 6 Eq. 517. at p. 518.
24 At p. 519.s
25 Bulkeley v. Schutz (1871) L.R. 3 P.C. 764; Bateman v. Service (1881) 6 App. Cas. 386.
26 (1884) 27 Ch.D. 225, at pp. 228, 229.
27 Companies Act, 1862; compare Companies Act, 1948, s. 274 (1).
28 (1886) 33 Ch.D. 174; see also Re Mercantile Bank of Australia [1892] 2 Ch. 204, per North J., at p. 208. Re Jarvis Conklin Mortgage Co. (1895) 11 T.L.R. 373 and Re Australian Joint Stock Bank (1897) 41 S.J. 469 are inconclusive.
29 (1885) 29 Ch.D. 219.
30 At p. 220.
31 See also Re Syria Ottoman Ry. (1904) 20 T.L.R. 217, at p. 218Google Scholar, per Byrne J.
32 [1951] 1 Ch. 112; [1950] 2 All E.R. 549.
33 11 & 12 Vict. c. 45, amended 12 & 13 Vict. c. 108; see the Act for the Registration, Incorporation and Regulation of the Joint Stock Companies, 1844, s. 66 (7 & 8 Vict. c. 110); Act for facilitating the Winding-up of the Affairs of Joint Stock Companies, etc., 1844, ss. 2, 24 (7 & 8 Vict. c. 111).
34 Now Part IX of the Companies Act, 1948.
35 s. 398.
36 See above, note 22, and the cases cited there. And see Russian and English Bank v. Baring Brothers [1936] A.C. 405, at p. 424.
37 It reproduces in subss. (a) and (c) the provisions of s. 5 (7) and (8) of the Act of 1848. See above, note 33. See also Companies Act, 1908, s. 268; Companies Act, 1929, s. 338 (1) (d).
38 8 Edw. 7, c. 69.
39 See also s. 337 (3) of the Act of 1929.
40 ss. 274 et seq. of the Act of 1908; Part X, ss. 406–414 of the Act of 1948.
41 Incorporating Companies Act, 1928, s. 99, and Second Schedule; now Companies Act, 1948, s. 398 (c).
42 i.e., Companies Act, 1929, s. 338 (1) (b); now Companies Act, 1948, s. 399 (3).
43 i.e., Companies Act, 1929, s, 338 (1) (a); now Companies Act, 1948, s. 399 (5). C.L.J. 14
44 Companies Act, 1948, s. 399 (5) (a)-(c); Companies Act, 1929, s. 338 (1) (d).
45 Companies Act, 1948, s. 398 (c) in conjunction with s. 399 (3).
46 [1944] Ch. 404.
47 See Companies (Winding-up) Rules, 1929, r. 28; 1949, r. 29; Re Naamlooze Vennootschap Handelsmaatschappij Wokar [1946] Ch. 98.Google Scholar
48 Carron Iron Co. v. Maclaren (1852) 5 H.L.C. 416; Newby v. Van Oppen (1872) 7 Q.B. 293. Dicey, Conflict of Laws (6th ed., 1949), pp. 173–74 and the cases cited in notes 13, 14.
49 Joint Stock Companies Winding-up Act, 1848, s. 118.
50 (1884) 27 Ch.D. 225, at pp. 228, 229; Palmer, Company Law (19th ed., 1949), p. 415. For the converse principle that a dissolution abroad does not preclude the winding up in England of a foreign company see Russian and English Bank v. Baring Brothers [1936] A.C. 405.Google Scholar
51 s. 338 (2) of the Act of 1929.
52 s. 399 (3) of the Act of 1948; s. 338 (1) (b) of the Act of 1929.
53 s. 399 (5) of the Act of 1948; s. 338 (1) (d) of the Act of 1929.
54 [1951] 1 Ch. 112, at pp. 125, 128 et seq.; [1950] 2 All E.R. 549, at pp. 556, 558 et seq.
55 s. 338 (1) (d) of the Act of 1929.
56 s. 338 (2) of the Act of 1929, see Russian and English Bank v. Baring Brothers [1936] A.C. 405.Google Scholar
57 s. 338 (1) (b) of the Act of 1929.
58 18 & 19 Geo. 5, c. 45, s. 91.
59 But see Sir Raymond Evershed M.R. [1951] 1 Ch. 112, at p. 131; [1950] 2 All E.R. 549, at p. 560. For another view see Halsbury, Laws of England, 5 (2nd rev. ed., 1950), p. 943 and note (m). Compare Russian and English Bank v. Baring Brothers [1936] A.C. 405, at p. 428.Google Scholar
60 Sir Raymond Evershed M.R. [1951] 1 Ch. 112, at p. 126; [1950] 2 All E.R. 549, at p. 556.
61 Bankruptey Act, 1914, ss. 1 (2), 4.
62 Companies Act, 1948, s. 354.