Panel:“ Is Your Model Law Like My Model Law? Key Variations Among Jurisdictions Adopting the UNCITRAL Model Law”
Summary by Gustavo Lacerda Franco – NextGen Class 2025
The panel“ Is Your Model Law Like My Model Law? Key Variations Among Jurisdictions Adopting the UNCITRAL Model Law” assembled leading restructuring and insolvency professionals with broad experience in the field, Prof. Juan Luis Goldenberg Serrano( Chile), Stacy Lutkus( USA), Prof. Michael Veder( The Netherlands) and Lord Justice Antony Zacaroli( England), to discuss the most relevant variations among the local versions of the UNCITRAL Model Law on Cross-Border Insolvency, adopted by more than 60 jurisdictions.
For starters, Prof. Michael Veder highlighted the Model Law’ s flexibility, which enables the use
20of different variations. The debtor’ s centre of main interests( COMI) and how distinct jurisdictions manage to overcome the challenge of assessing it correctly in each cross-border insolvency case was a central topic of debate among the panelists. Prof. Juan Luis Goldenberg Serrano, for instance, mentioned the lack of extensive case law regarding the matter in Latin America and the difficulties faced when determining the COMI of enterprise groups. According to him, Brazil’ s version of the Model Law features a legal provision with the purpose of preventing manipulation of COMI
that has not been commonly adopted by other jurisdictions.
The panelists also addressed situations in which some types of local creditors would not be reached by the effects of recognition of foreign proceedings. In this sense, Stacy Lutkus referred to an American reorganization case in which the debtors, even after recognition was granted by a Brazilian Court, still had to deal with some local creditors regardless of the confirmed plan’ s provisions.
How each jurisdiction understands the public policy exception was another point of discussion. Lord Justice Zacaroli, for example, stated that, generally, the public policy exception should be read restrictively. Some jurisdictions, however, have chosen a different path. The Chilean version of the Model Law, as Prof. Goldenberg Serrano pointed out, establishes that the court can refuse to take an action if it would be“ contrary to the public policy”, instead of adopting the wording“ manifestly contrary to the public policy”.
During the panel, other issues were addressed as well, including whether recognition necessarily triggers a moratorium, whether the court can grant relief that would otherwise be unavailable under domestic law, and the mandatory opening of ancillary proceedings because of recognition of the main insolvency proceedings abroad.
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