Model Laws continued from page 27 which the effects of the MLCBI have been felt in the first two decades of this century. How so?
The Committee( for its members, see here) is a beautiful blend of professionals. It comprises 40 members:
• Working in 20 countries from all regions of the world;
• Even in numbers of III members and NextGen members( younger professionals and academics in a programme to liaise with experienced III members);
• Mastering over 40 languages, and being
• 60 % practitioners, 30 % academics and 10 % judges.
Once formed, the Committee proceeded thoughtfully and carefully. It distinguished as( possible) activities,( i) technical assistance,( ii) comparative assistance,( iii) scholarly assistance,( iv) anticipatory resolution,( v) dispute resolution. The major bulk of the Committee’ s assistance relates to the MLCBI. It could, however, also involve additional results of UNCITRAL’ s work, the Model Law on Insolvency-Related Judgements( MLIJ)( 2018 with Guide of Enactment) and the Model law on Enterprise Group Insolvency( MLEGI)( 2019 with Guide of Enactment). To date, however, no country has enacted either of those recent Model Laws.
Where can we help?
As an example of technical assistance, it is noted that UNCITRAL texts generally cover commercial transactions and are designed to provide legal certainty for commercial dealings of professional parties. The III Committee Model Laws @ Work’ s technical assistance may include:
- to evaluate a state’ s present legal system orientation( legal-historic roots, civil law, common law, mixed system) and its present national international insolvency provisions and / or case law), including a gap analysis;
- to discuss the desirability of reciprocity( full reciprocity; reciprocity of certain parts);
- to assess to provide for a mix of legal instruments( certain parts of the MLCBI; certain parts in a bi-lateral treaty; large cases with protocols);
- to discuss core matters( e. g., foreign’ tax claims, scope of‘ public policy ', foreign representative issues, constitutional independence of judges in relation to crossborder cooperation);
- to align or augment, where necessary, provisions with existing soft law( such as other UNCITRAL texts, ALI-III Principles and Guidelines 2012 or JIN Guidelines);
- to align any enactment with the MLCBI text and its compatibility with existing domestic rules( insolvency law, procedural law, corporate law, contract law, labour law);
- to add, if desired, new provisions in as far as not covered by the MLCBI( e. g. registration of‘ international’ judgments, data protection rules; technological facilities for in court-tocourt communication). This type of assistance aims to assist legislators and policy makers.
Raising awareness
We have seen several new democracies and rising economies showing interest in crossborder matters. New generations of lawyers and judges are being confronted with the globalisation of insolvency. Younger insolvency and restructuring researchers are looking for peers in other countries, to prevent working in isolation, i. e. a scholarly environment where at best a few people know the national insolvency system, but are at a loss for words when it comes to the international insolvency system. With this, it is obvious to start with raising the awareness of the UNCITRAL texts and the themes it covers. The next phase could be to advise and to provide assistance to states’ legislators, and capacity building through training of legal practitioners and the judiciary.
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