Cross-border insolvency

Cross-border insolvency (sometimes called international insolvency) regulates the treatment of financially distressed debtors where such debtors have assets or creditors in more than one country.[1] Typically, cross-border insolvency is more concerned with the insolvency of companies which operate in more than one country rather than the bankruptcy of individuals. Like traditional conflict of laws rules, cross-border insolvency focuses upon three areas: choice of law rules, jurisdiction rules and enforcement of judgment rules.[2] However, in relation to insolvency, the principal focus tends to be the recognition of foreign insolvency officials and their powers.

Theories of cross-border insolvency

There are broadly three theories in relation to the administration of cross-border insolvency:[3]

It is generally recognised that the universalist approach remains largely a holistic ideal, and for the most part countries of the world are divided into those which take a purely territorial approach, and those which apply some form of hybrid approach.


Historically, most legal systems have developed on a territorial basis, and this is as true in relation to bankruptcy laws as other areas. However, from an early stage there have been piecemeal attempts to develop cross-border cooperation in insolvency matters.[6]

But from a comparatively early stage common law jurisdictions recognised the desirability of ensuring that insolvency officers from different jurisdictions received the necessary support to enable the efficient administration of estates. Under English law one of the earliest recorded cases was Solomons v Ross (1764) 1 H Bl 131n. In that case a firm in the Netherlands was declared bankrupt and assignees were appointed. An English creditor had brought garnishee proceedings in England to attach certain sums owing to the Dutch firm but Bathurst J held that the bankruptcy had vested all the firm's assets (including debts owed by English debtors) in the Dutch assignees, and the English creditor had to surrender the fruits of the garnishee proceedings and prove in the Dutch bankruptcy. In Re African Farms 1906 TS 373 an English company with assets in the Transvaal Colony was in winding-up in England, and the Chief Justice of the Transvaal confirmed that the English liquidator would be recognised and that "recognition which carries with it the active assistance of the court", and that active assistance could include: "A declaration, in effect, that the liquidator is entitled to deal with the Transvaal assets in the same way as if they were within the jurisdiction of the English courts, subject only to such conditions as the court may impose for the protection of local creditors, or in recognition of the requirements of our local laws." In Galbraith v Grimshaw [1910] AC 508 Lord Dunedin stated that there should be only one universal process of the distribution of a bankrupt's property and that, where such a process was pending elsewhere, the English courts should not allow steps to be taken in its jurisdiction which would interfere with that process.[11]

However, the first significant developments in relation to cross-border insolvency regimes which were widely adopted were (1) the UNCITRAL Model Law, and (2) the EC Regulation on Insolvency Proceedings 2000.

Modern regimes

There are two current regimes for international insolvencies presently in existence which have been implemented on a something wider than a regional basis: the UNCITRAL Model Law on Cross-Border Insolvency, and the EC Regulation on Insolvency Proceedings 2000.[12] Both regimes are predicated upon locating the centre of main interest (or "COMI") of the debtor.

The UNCITRAL Model Law

The United Nations Commission on International Trade Law adopted a model law relating to cross-border insolvency on 30 May 1997.[13] At present 23 jurisdictions have substantially implemented the Model Law into their domestic legislation, including a number of states which have both significant economies and large volumes of cross border trade, such as the United States, Japan, the United Kingdom, Australia and Canada, as well as leading emerging economies such as Mexico and South Africa.

The basic concept of the Model Law is to establish what the "main proceedings" are in relation to any international insolvency. All other proceedings are referred to as the "non-main proceedings". The main proceedings are commenced where the debtor has its centre of main interest, or "COMI".[13] Non-main proceedings may be commenced in any place where the debtor has a commercial establishment. The Model Law does not require reciprocity between states, but focuses upon (i) ensuring that states give assistance to insolvency officials from other countries in relation to main proceedings and non-main proceedings, and (ii) eliminating preferences for local creditors over international ones.[14]

The following countries have substantially implemented the Model Law into their domestic legislation.[15]

State Date of Ratification State Date of Ratification
 Australia 2008  British Virgin Islands 2003[16]
 Canada 2005  Chile 2013
 Colombia 2006  Greece 2010
 Japan 2000  Mauritius 2009
 Mexico 2000  Montenegro 2002
 New Zealand 2006  Philippines 2010
 Poland 2003  Republic of Korea 2006
 Romania 2002  Serbia 2004
 Seychelles 2013  Slovenia 2007
 South Africa 2000  Uganda 2011
 United Kingdom 2006[17]  United States 2005[18]
 Vanuatu 2013

EC Regulation on Insolvency Proceedings 2000

The EC Regulation on Insolvency Proceedings 2000 was passed on 29 May 2000 and came into effect on 31 May 2002.[19] The EC Regulation, as its name applies, operates between member states of the European Union, and focuses upon creating a framework for the commencement of proceedings and for the automatic recognition and co-operation between the different member states. Unusually for a European regulation, the EC Insolvency Regulation does not seek to harmonise insolvency laws between the different member states.

Like the UNCITRAL Model Law, the EC Regulation also employs the concept of a centre of main interest (or "COMI"). The definition of the COMI is left to member states in their implementation of the Regulation, but paragraph (13) of the preamble states: 'The "centre of main interests" should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties.' If the COMI of an entity is outside of the European Union then the insolvency proceedings are not subject to the Regulation.[20] In relation to companies there is a presumption that the registered office will be the COMI of the company, but this presumption can be (and often is) rebutted.[21]

The EC Regulation does not define insolvency, but it does define insolvency proceedings as being "collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator".[22] Article 3 divides proceedings into main proceedings and territorial proceedings. The main proceedings are accorded extraterritorial effect throughout the European Union. One of the concerns which has been expressed in relation to the EC Regulation is that (other than a reference to the European Court of Justice) there is no mechanism for determining which set of proceedings are to be regarded as the main proceedings if two or more jurisdictions claims that their own proceedings are the main proceedings.[23][24]

Areas of conflict

In any attempt to harmonise or facilitate cross-border administration of insolvent companies, there are certain key points upon which national insolvency regimes can take widely divergent approaches.


  1. Ian Fletcher (2005). Insolvency in Private International Law (2nd ed.). Oxford University Press. ISBN 978-0199262502.
  2. Andrew Keay and Peter Walton (2011). Insolvency Law (2nd ed.). Jordans. p. 385. ISBN 978-1846611193.
  3. Andrew Keay and Peter Walton (2011). Insolvency Law (2nd ed.). Jordans. p. 386. ISBN 978-1846611193.
  4. Jay Westbrook (2000). "Global Solution to Multinational Default" (PDF). Michigan Law Review. 98: 2276. doi:10.2307/1290306.
  5. Lynn LoPucki (1999). "Cooperation in International Bankruptcy: A Post-Universalist Approach" (PDF). Cornell Law Review. 86: 696.
  6. Andrew Keay and Peter Walton (2011). Insolvency Law (2nd ed.). Jordans. p. 387. ISBN 978-1846611193.
  7. Wyndham Bewes. "The Treaties of Montevideo (1889)". JSTOR 742785.
  8. Philip Wood (2007). Principles of International Insolvency. 29-080: Sweet & Maxwell. ISBN 9781847032102. Retrieved 23 June 2015.
  9. Carl Hugo Parment. "The Nordic Bankruptcy Convention - An Introduction" (PDF). Retrieved 23 June 2015.
  10. Elizabeth Somers (2011). "The Model International Insolvency Cooperation Act: An International Proposal for Domestic Legislation". American University International Law Review. 6 (4): 677.
  11. "Now so far as the general principle is concerned it is quite consistent with the comity of nations that it should be a rule of international law that if the court finds that there is already pending a process of universal distribution of a bankrupt's effects it should not allow steps to be taken in its territory which would interfere with that process of universal distribution." at 513
  12. No 1346/2000
  13. 1 2 "UNCITRAL Model Law on Cross-Border Insolvency (1997)". UNCITRAL. Retrieved 7 June 2015.
  14. Model Law, Article 13, paragraph 2
  15. "Status - UNCITRAL Model Law on Cross-Border Insolvency (1997)". UNCITRAL. Retrieved 7 June 2015.
  16. Although the British Virgin Islands has enacted provisions of the Model Law as Part XVIII of the Insolvency Act, 2003 (which came into force on 1 January 2004), that Part has not yet been brought into force. See generally: British Virgin Islands bankruptcy law.
  17. See United Kingdom insolvency law - International insolvency
  18. See Chapter 15, Title 11, United States Code.
  19. "Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings". Eur-Lex. Retrieved 23 June 2015.
  20. Re the Arena Corporation Ltd [2003] EWHC 3032 (Ch.), affirmed on appeal ([2004] EWCA Civ 371).
  21. Re AIM Underwriting Agencies [2004] EWHC Civ 2114; Re TXU Europe German Finance BV [2005] BCC 90.
  22. Article 1(1).
  23. Re Eurofood IFSC Ltd (Case C-341/04), [2006] ECR 1-701
  24. Andrew Keay and Peter Walton (2011). Insolvency Law (2nd ed.). Jordans. p. 400. ISBN 978-1846611193.
  25. In an insolvent liquidation banks who provide loan finance will often be key creditors. Similarly, most companies will also have cash-at-bank as one of their assets. The ability of banks to set-off those sums can be a material factor.
This article is issued from Wikipedia - version of the 11/10/2016. The text is available under the Creative Commons Attribution/Share Alike but additional terms may apply for the media files.