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Newsletter Article

The Model Law Revisited – A Look Back, New Resources

Published: 08/30/2010

By David Ward

The Model Law on Cross-Border Insolvency was produced under the auspices of the United Nations Commission on International Trade Law (UNCITRAL) which is the United Nations’ major commercial law organization headquartered in Vienna. UNCITRAL began work on the Model Law project in 1994 out of a recognition among insolvency practitioners that international insolvency systems and structures needed improvement.

The UNCITRAL project focused on the twin concepts of access and recognition: access for foreign insolvency representatives in domestic insolvency proceedings and recognition of insolvency proceedings in other jurisdictions (subject to protections for domestic creditors). The insolvency profession was solidly behind the improvements and UNCITRAL’s work on the Model Law on Cross-Border Insolvency concluded in three years, with the Model Law being approved by the United Nations General Assembly in 1997.

These days it is difficult to find a major case that does not have significant international issues and components. Frequently, the international issues are critical and determinative of the fate of the reorganizing business. As a consequence, Chapter 15 and its counterparts have become exceptionally important features of international trade and commerce and are having an effect that has substantially exceeded the expectations and intentions of the founders and drafters of the UNCITRAL Model Law on Cross-Border Insolvency.

Chapter 15, which adopts the Model Law for purposes of the Bankruptcy Code, and its counterparts around the world represent a significant and unprecedented advance in international insolvency systems and procedures which has no equal in any other developments in the international insolvency field. The enactment of Chapter 15 and its counterparts in 19 different countries have brought about a profound change in the way that international insolvencies and restructurings are able to proceed.

In recognition of the significance and emerging acceptance of the UNCITRAL Model Law and cross-border insolvency, Cassels Brock has assembled some important resources that will be of assistance to lawyers having an interest in the area. These resources include a listing of the cases in which Chapter 15 relief has been considered and, usually, granted. Although the listing is not exhaustive, it includes over 230 Chapter 15 cases from 36 bankruptcy courts including four decisions in four circuit courts. The listing is organized by the country of foreign proceeding.

E-communique readers may also have an interest in two extensive bibliographies that have been prepared. The first is a bibliography of articles on Chapter 15 of the United States Bankruptcy Code, current to July 15, 2010. The list includes seventy published articles by legal commentators from around the world.

Also available is an extensive bibliography of articles on the UNCITRAL Model Law. The list is also international and identifies upwards of eighty UNCITRAL Model Law articles current to July 15, 2010.

Readers who have an interest in Chapter 15 and the Model Law who would like copies of these insolvency resources are invited to contact David Ward at dward@casselsbrock.com.