Clarity in Singapore: How COMI Is Determined Under the UNCITRAL Model Law on Cross-Border Insolvency
In Short
The Situation: In re Fullerton Capital Ltd [2025] SGCA 11, a BVI-incorporated company entered into insolvency proceedings in the British Virgin Islands ("BVI"). The liquidators sought recognition of the BVI liquidation as a "foreign main proceeding" in Singapore under the UNCITRAL Model Law on Cross-Border Insolvency, as adopted in the Insolvency, Restructuring and Dissolution Act 2018 ("Model Law"). A former director challenged the application, arguing that the company's center of main interests ("COMI") was not in the BVI.
The Result: The Singapore Court of Appeal confirmed that the starting point of the analysis is that a debtor's COMI is presumed to be at its registered office, and clarified that this presumption can only be rebutted if the party challenging it proves, on a balance of probabilities, that another jurisdiction has a comparatively stronger connection to the debtor. The court also clarified that the relevant time for assessing COMI is the date of the recognition application, and that the actions of foreign representatives post-commencement may be relevant.
Looking Ahead: This decision reinforces Singapore's commitment to the principle of "modified universalism" in cross-border insolvency and provides much-needed clarity on the COMI determination process. It sets a high-evidentiary threshold for rebutting the registered office presumption and signals to practitioners that a fact-intensive, comparative analysis is required. The judgment also recognizes the potential for COMI to shift during insolvency and underscores the importance of objective, third-party ascertainable evidence in COMI disputes.
Rebuttable Presumption of COMI Under the Model Law
Article 16(3) of the Model Law provides that a debtor's COMI is presumed to be the location of its registered office, once proof of the registered office is provided. The Court of Appeal made clear that this presumption is not a mere tie-breaker or fallback, but the mandatory starting point for the COMI analysis. The burden of proof to rebut this presumption lies squarely on the party asserting that the COMI is elsewhere, and the standard of proof is the balance of probabilities.
The court rejected the U.S. approach, which treats the presumption as only imposing an evidentiary burden and allows the burden to shift back to the applicant upon the production of some contrary evidence (In re Tri Continental Exchange Ltd., 349 B.R. 627 (Bankr. E.D. Cal. 2006)). In Singapore, the legal burden remains on the party seeking to rebut the presumption throughout the analysis.
The Relativity of COMI and the Need for a Positive Case
COMI is a relative concept. It is not enough to simply show a lack of connection to the registered office. The party seeking to displace the presumption must identify a specific alternative jurisdiction and demonstrate, with objective and concrete evidence, that this jurisdiction is the true COMI. The analysis is comparative: The court must be satisfied that the alternative jurisdiction has a stronger connection to the debtor than the registered office.
Objective, third-party ascertainable factors are key—such as the location of management, principal assets, or main creditors. General assertions or negative evidence (such as the absence of business activity at the registered office) will not suffice.
Timing of COMI Assessment and the Role of Foreign Representatives' Actions
The relevant time for determining a debtor's COMI is the date of the recognition application. The court moved away from a rigid rule that would exclude the actions of foreign representatives after the commencement of insolvency proceedings. Instead, the court adopted a nuanced approach: The actions of foreign representatives post-commencement may be relevant to the COMI analysis, but the weight accorded to such actions will depend on the circumstances, including whether there is evidence of abusive forum shopping.
This means that a debtor's COMI could shift from one location to another from the time it was "alive and flourishing," to the time it had begun restructuring, to the time recognition of the foreign proceeding is sought. The court emphasized that the analysis is highly fact-specific and that the quality, not just the quantity, of connecting factors is critical.
Preparing for a Fact-Intensive Inquiry
The court's approach to COMI is highly fact-specific. Practitioners should be ready to present comprehensive, objective evidence regarding the debtor's operations, management, creditors, and business activities. The analysis may be particularly complex where a debtor has operations or management spread across several countries, or where group structures are involved. In such cases, practitioners should anticipate the need to address multiple potential COMIs and be prepared to demonstrate why one jurisdiction has a stronger connection than all others.
Even if the registered office is a mere formality and the debtor has little or no substantive connection to that jurisdiction, the presumption will only be displaced if there is sufficient, objective evidence of a stronger connection elsewhere. The absence of activity at the registered office does not, by itself, rebut the presumption.
Five Key Takeaways
- The presumption that the registered office is the COMI is the starting point and must be affirmatively rebutted on a balance of probabilities.
- COMI is a relative concept: A specific alternative jurisdiction must be identified and substantiated with objective evidence.
- The relevant date for assessing COMI is the date of the recognition application; both pre- and post-commencement activities may be relevant, but their weight depends on the context and the absence of abusive forum shopping.
- Practitioners should prepare for a fact-intensive inquiry and be ready to address the possibility of multiple potential COMIs, especially in complex or multinational structures.
- The decision provides greater legal certainty for creditors and stakeholders in cross-border insolvency, reinforcing Singapore's position as a sophisticated and reliable jurisdiction for cross-border restructuring and insolvency matters.
