Panel:“ Worldwide Venue Shopping” Summary by Sabrina Becue – NextGen Class 2024
The panel“ Worldwide
Venue Shopping” brought together leading insolvency practitioners from diverse jurisdictions to explore the growing relevance of forum selection( FS) in cross-border restructuring and insolvency proceedings. Panelists included Jasper Berkenbosch( The Netherlands), Ian De Witt( Hong Kong), Andy Dietderich( United States), and Fabiana Solano( Brazil), each of whom offered jurisdiction-specific insights into how debtors select the most advantageous venue, as well as the strengths and limitations of their respective insolvency regimes.
A central theme of the discussion was the increasing flexibility shown by courts toward FS and the corresponding decline in the significance of the centre of main interests( COMI), particularly in voluntary proceedings. As emphasized by Dietderich, we are witnessing the " golden age " of forum selection, in which courts in jurisdictions such as the United States and the United Kingdom are willing to entertain proceedings even when the debtor’ s COMI is located elsewhere. Voluntary restructurings— such as those under Chapter 11 or the UK
restructuring plan— enable corporate management to deliberately choose the forum, often for legitimate reasons such as cost reduction or access to more effective legal tools.
The panel also addressed the delicate balance between proper and improper motives behind FS. While forum selection may represent a legitimate strategic decision consistent with directors ' fiduciary duties under applicable domestic laws, it also raises concerns regarding potential misuse.
Illustrative examples from recent Latin American restructurings were cited to show that COMI is not always determinative— particularly where recognition in the home jurisdiction is unnecessary or when the debtor ' s obligations are primarily owed to foreign creditors. In such cases, FS may serve not only as a pragmatic solution but also as a catalyst for legal reform, encouraging jurisdictions to modernize and enhance the attractiveness of their insolvency frameworks.
Ultimately, the panel concluded that modern FS is not an all-or-nothing approach. Rather, debtors are increasingly able to tailor proceedings by selecting favorable elements from multiple legal systems, reflecting the practical and strategic dimensions of venue shopping in global insolvency practice.
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