UNCITRAL Report
In December 2016, Tinamarie Fell, Debra Grassgreen, Carren Shulman, Beth Hansen, and Eloise Fardon attended the UNCITRAL (United Nations Commission on International Trade Law) Working Group V (Insolvency Law) session in Vienna as representatives of IWIRC. IWIRC was participating as an observer organisation at a session.
Working Group V was responsible for drafting the Model Law on Cross-Border Insolvency, which was adopted by UNCITRAL in 1997 and has since been adopted in 22 jurisdictions. (It is anticipated that the Companies (Amendment) Bill 2017 will be introduced sometime this year and that Singapore is likely to be the next jurisdiction to adopt the existing Model Law.) Since 1997, Working Group V has worked on various other projects related to harmonization and development of cross-border insolvency. Working Group V is currently tasked with two projects which were progressed during the December session: 1) Recognition and enforcement of insolvency-related judgments; and 2) Facilitating the cross-border insolvency of multinational enterprise groups.
1. Recognition and enforcement of insolvency-related judgments
· In 2014, the Commission gave the working group a mandate to develop either a model law or model legislative provisions to provide for the recognition of insolvency-related judgments. The working group plans to develop this as a stand-alone instrument (separate from the Model Law on Cross-Border Insolvency). This has been developed into a draft model law over the last couple of years. The first half of the week was spent refining this substantially progressed draft.
· It is hoped that this Model Law can be finalized during the working group’s next session, in New York in May 2017, so that it can then go to the Commissioner for approval.
· As with the existing model law, the new model law will not require reciprocity. If the new model law is approved, it will be interesting to see which EU member states adopt the new Model law. One of the implications of the Brexit decision is that the UK will no longer be able to rely on the European Insolvency Regulations. It is possible that an enacted Model law on recognition and enforcement of insolvency related judgments may fill some of the gaps for UK companies and creditors looking to have their decisions enforced in continental Europe.
· While the substance of many of the substantive provisions are now agreed, or in close to final form, there is still disagreement about the definition of “insolvency-related judgment” and the the scope of the new model law. Member states have been asked to give this further consideration before the next session in May.
· Some wording was also proposed as a “Rubin-fix,” that is, to make it clear that relief available (under Article 21 of the existing Model Law) includes recognition and enforcement of an insolvency-related judgment.
2. Facilitating the cross-border insolvency of multinational enterprise groups
· During the second half of the week, Working Group V focused on the cross-border insolvency of multinational enterprise groups project. Working Group V is