13 July 2020
As the world’s economy becomes increasingly transnational, and debtors, their assets, and creditors are scattered across multiple jurisdictions, the need for consistency and efficiency in the cross-border administration of insolvency proceedings has become more pressing. Variations among legal systems have resulted in inconsistent, duplicative, time-consuming and costly efforts to recognise and enforce insolvency-related judgments in different jurisdictions, creating legal uncertainty and other complications in the administration of cross-border insolvency proceedings.
The United Nations Commission on International Trade Law (UNCITRAL) attempted to foster international cooperation in the administration of cross-border insolvencies through its Model Law on Cross-Border Insolvency (MLCBI), but there remained an ambiguity in the recognition and enforcement of judgments related to insolvency proceedings, especially where enforcement of the foreign judgment was inconsistent with local law.
The Model Law
As a result, in 2014, UNCITRAL gave a mandate to its Working Group V on Insolvency Law to develop a model law that specifically provides for the recognition and enforcement of insolvency-related judgments. The Working Group collaborated with UNCITRAL’s 60 member states and the representatives of 31 observer states and 34 inter-governmental and non-governmental organisations to develop the Model Law on Recognition and Enforcement of Insolvency-Related Judgments .
On 2 July 2018, UNCITRAL adopted the Model Law, which is designed to address both the gap in international law regarding the cross-border recognition and enforcement of judgments that arise as a consequence of, or are materially associated with, insolvency proceedings; and the uncertainty in interpreting certain provisions of the MLCBI “in terms of providing the necessary authority for such recognition and enforcement as a form of relief available on recognition of a foreign insolvency proceeding.”
How the Model Law works
The Model Law seeks to address these issues through its primary characteristics: harmonisation and flexibility. It offers enacting states a “simple, straightforward and harmonised procedure for recognition and enforcement of insolvency-related judgments” while remaining flexible in its integration into each enacting state’s legal system. Importantly, the Model Law is intended to supplement the MLCBI, and in fact mirrors its provisions and definitions in many respects, as well as the existing legal frameworks of the enacting states.
For example, as international insolvency practitioners, we know the terminology used in insolvency proceedings can vary by jurisdiction. Where a term or expression is likely to vary among enacting states, the Model Law offers more inclusive defined terms, such as “insolvency proceeding” (as opposed to liquidation, reorganisation or bankruptcy) and “insolvency representative” (rather than trustee, foreign representative, liquidator, judicial administrator etc). It also describes terms or expressions in brackets as placeholders for jurisdiction-specific information – like the name of the court, body, or authority designated to perform the specified function – allowing the enacting state’s legislators to use the term specific to that jurisdiction.
Additionally, the Model Law offers optional provisions, such as one allowing the enacting state to refuse the recognition of an insolvency-related judgment when it originates from a state whose “insolvency proceeding” would not be subject to recognition under the MLCBI.
The Model Law also contains two noteworthy exceptions to recognising and enforcing insolvency-related judgments. Enacting states may refrain from taking any action that would be “manifestly contrary” to their public policy. Further, the Model Law enumerates the following specific grounds for the refusal of recognition and enforcement:
- improper notice to the defendant in the proceeding that gave rise to the insolvency-related judgment;
- the judgment was obtained by fraud;
- the judgment is inconsistent with a judgment entered in the enacting state involving the same parties;
- the judgment is consistent with an earlier judgment entered in another state involving the same parties and subject matter;
- recognition and enforcement would interfere with the administration of the debtor’s insolvency proceeding;
- the judgment materially affects the rights of creditors generally and their interests were not adequately protected in the proceeding that led to the judgment; and
- the court issuing the judgment did not have jurisdiction.
Defining an “insolvency-related judgment”
As its name suggests, the Model Law’s distinguishing feature is that it applies to “insolvency-related judgments”, which previously had not been fully addressed by other UNCITRAL insolvency texts. The Model Law provides a broad definition of “judgment” to include any decision, such as a decree, order, or determination of costs and expenses, “issued by a court or administrative authority”. To fall within the Model Law’s scope, an insolvency-related judgment must “arise… as a consequence of or [be] materially associated with an insolvency proceeding”, and be “issued on or after the commencement of that insolvency proceeding”. Importantly, the judgment must have been rendered in a proceeding in a state other than the enacting state in which recognition and enforcement are sought; the location of the insolvency proceedings to which the judgment relates is immaterial.
The Model Law’s Guide to Enactment provides a non-exhaustive list of judgments that fall within the definition of “insolvency-related judgment”, including judgments dealing with the constitution and disposal of assets in the insolvency estate; judgments determining whether a transaction involving the debtors or assets of its insolvency estate should be avoided because it was a preferential transaction or a transaction at an undervalue; judgments involving a director or representative liability for the debtor’s actions while insolvent or in the period approaching insolvency; judgments determining that sums are owed to or by the debtor or the insolvency estate; judgments confirming or varying a plan of reorganization or liquidation or approving a voluntary or out-of-court restructuring agreement; and judgments for the examination of a director of the debtor, where that director is located in a third jurisdiction.
Decisions or orders commencing insolvency proceedings and interim measures of protection are explicitly excluded from the Model Law’s scope. Further, it is unclear whether insolvency-related arbitral decisions are considered “insolvency-related judgments” under the Model Law, as they may not come from an “administrative authority.”
The Model Law’s impact and success
While it is still too early to evaluate the Model Law’s impact and success, its design as a supplement to the MLCBI and the enacting state’s existing legal structure, rather than an overhaul of existing insolvency frameworks, suggests that it will succeed (at least partially) in making the recognition and enforcement of insolvency-related judgments more consistent and efficient. Moreover, though the Model Law intends to respect the insolvency schemes of the respective enacting states, UNCITRAL cautions against excessively modifying the Model Law and frequently invoking its exceptions. That said, enacting states are still free to make the necessary modifications to protect their own legal processes and domestic creditors, which could result in the very complications the Model Law was intended to eliminate.
The Model Law’s success also depends on the number of states that enact it. By way of comparison, over 45 jurisdictions have adopted the MLCBI, including Australia, Canada, Colombia, Japan, Kenya, Mexico, New Zealand, the Republic of Korea, Singapore, South Africa, the UK, BVI, Gibraltar, and the US; however, several European nations have not adopted it and are governed by the separate EU regulation (EC No. 1346/2000) on insolvency proceedings. This same EU regulation provides for the recognition and enforcement of judgments that “derive directly from and are closely linked to… insolvency proceedings”. Because this EU regulation seems to address the recognition and enforcement of insolvency-related judgments, and several European nations have opted to implement its framework and rejected the MLCBI, it is unlikely that these same nations will adopt the Model Law.
Finally, as mentioned above, it is unclear whether insolvency-related arbitral decisions fall within the scope of the Model Law. As the law develops and the Working Group continues to issue guidance on its enactment, practitioners should expect to see developments on this issue.