42,99 €
Mehr erfahren.
- Herausgeber: ARANZADI / CIVITAS
- Kategorie: Fachliteratur
- Serie: Estudios
- Sprache: Spanisch
- Veröffentlichungsjahr: 2023
Two introductions (a general one to the contributions and other on the UNCITRAL Insolvency Instruments history) with a foreword are followed by three sections: 1) each one of the seven UNCITRAL Instruments; 2) its continental impact (with the added division between America North, USA-Canada, and the rest); 3) global perspective with different focus: Common Law, Civil Law, Soft Law and treaties, and other methods. All chapters are written by experts having been UNCITRAL's Working Groups and Plenaries representatives from their Countries or from International Organizations.
Sie lesen das E-Book in den Legimi-Apps auf:
Seitenzahl: 803
Ähnliche
Insolvency Law in UNCITRAL: Instruments and Comments
Ángel María Ballesteros Barros
David Amable Morán Bovio
Directors
Insolvency Law in UNCITRAL: Instruments and Comments
Prologue by
Anne Joubin-Bret
Firs edition, 2023
Includes electronic support
The editor is not responsible for the opinions collected, comments and statements made by the authors. This work exclusively collects the opinion of its author as a manifestation of their right to freedom of expression.
The Editorial expressly opposes that any of the pages of this work or parts of it be used for the preparation of press summaries.
Any form of reproduction, distribution, public communication or transformation of this The work can only be carried out with the authorization of its owners, except for the exception provided by the law. Contact CEDRO (Spanish Center for Reprographic Rights) if you need to photocopy or scan any fragment of this work (www.conlicencia.com; 91 702 19 70 / 93 272 04 45).
Therefore, this book may not be reproduced in whole or in part, or transmitted by electronic, mechanical, magnetic procedures or by computer storage and retrieval systems or any other means, being forbidden its loan, rental or any other form of assignment of use of the copy, without the prior written permission of the copyright holder or holders.
© 2023 [Editorial Aranzadi, S.A.U. / Ángel María Ballesteros Barros / David Amable Morán Bovio (Directors)]
© Front page: Editorial Aranzadi, S.A.U.
Editorial Aranzadi, S.A.U.
Camino de Galar, 15
31190 Cizur Menor (Navarra)
ISBN Papel: 978-84-1163-644-5
ISBN Editorial UCA: 978-84-9828-904-6
ISBN Proview: 978-84-1163-645-2
DL NA 2168-2023
Printed in Spain. Impreso en España
Pagination: Editorial Aranzadi, S.A.U.
Print: Rodona Industria Gráfica, SL
Polígono Agustinos, Calle A, Nave D-11
31013 – Pamplona
To Professor Olivencia, in memoriam.
With acknowledgment and gratefulness
to those who promote International Insolvency Law
and work towards its application
Foreword
Anne Joubin-Bret (1)
In an increasingly economically interdependent world, with the emergence of new players but also new risks and potential disruptions to international trade, the importance of developing and maintaining a robust legal framework for the facilitation of international trade and investment is widely acknowledged. This applies also to insolvency law. Its harmonization and modernization are crucial since that area of law concerns all businesses, not only multinational enterprises involved in cross-border trade. With the adoption in 1997 of the UNCITRAL Model Law on Cross-Border Insolvency (the MLCBI) that recently celebrated its 25th anniversary, UNCITRAL has developed a standard to assist States in equipping themselves with a modern, harmonized, and fair insolvency framework, in order to address more effectively instances of cross-border insolvencies. UNCITRAL complemented that text with the Legislative Guide on Insolvency Law in 2004, which was subsequently expanded with additional parts, aimed at establishing an efficient and effective legal framework for domestic insolvency proceedings, which would be harmonized across countries and regions to ensure a level playing field for all businesses regardless of their size and origin.
Two recent texts have supplemented that framework: the Model Law on Recognition and Enforcement of Insolvency-Related Judgments (2018) that assists States with modernizing their domestic legal framework with regard to foreign insolvency-related judgements; and the Model Law on Enterprise Group Insolvency (2019) that States can enact to build a modern legislation for addressing the domestic and cross-border insolvencies of enterprise groups, complementing the MLCBI that focuses on cross-border insolvency proceedings concerning a single debtor.
Around the same time, UNCITRAL prepared the Legislative Guide on Insolvency Law for Micro-and Small Enterprises (MSEs) (2021), as a stand-alone text and as part five of its Legislative Guide on Insolvency Law, to cater for the smaller and more vulnerable enterprises, that were severely hit during the recent Covid-19 pandemic and continue to struggle with recovery.
However, developing harmonized and modernized model legislation aimed at establishing a level playing field for businesses, whether multinationals or micro, small or medium enterprises (MSMEs), goes only so far as the actual adoption and use of that model legislation by States in their domestic framework. It is important to monitor and keep track of the way by which jurisdictions and regions with different legal traditions enact UNCITRAL texts. It is also crucial to monitor jurisprudence and practice, which may foster or hinder the harmonious application and interpretation of those texts. Guidance materials prepared by UNCITRAL and its secretariat assist with the enactment, use, implementation and interpretation of UNCITRAL insolvency texts. They are addressed to policy makers, legislators, judges and insolvency practitioners.
The collection of essays compiled and edited by David Morán Bovio and Ángel Ballesteros in this book responds to these needs for monitoring and stock-taking. It provides a useful overview of trends and evolution in the application of UNCITRAL insolvency law instruments from country, regional and global, and thereby truly cross-border, perspectives. The collection includes contributions by many experts, practitioners and academics who worked together over the years to shape international insolvency law, including as delegates and experts to UNCITRAL Working Group V. They also bring wealth of information and expertise that they have gathered, in their own right, and hence their unique perspective on UNCITRAL insolvency law texts and application of those texts in several jurisdictions and regions.
As international deliberations in UNCITRAL now focus on issues of applicable law in insolvency proceedings and best practices for civil asset-tracing and recovery of assets in an insolvency proceeding, the essays compiled in this publication with their primary focus on the practice with the use, application and interpretation of UNCITRAL insolvency texts across the world provide much relevant information and analysis for those projects as well.
Vienna, 24 February 2023
Secretary of UNCITRAL and Director of the International Trade Law Division of the Office of Legal Affairs of the United Nations.
Ver TextoIntroduction
Samira Musayeva (1)
The UNCITRAL secretariat appreciates the opportunity to write an introduction to this book, which is, to our knowledge, the first of this kind dedicated exclusively to UNCITRAL insolvency texts and is bilingual with the identical content in English and Spanish. The UNCITRAL secretariat is grateful to David Morán Bovio and Ángel Ballesteros for their idea to prepare such a book, for their hard work to put it together and get it published and for their invitation to the UNCITRAL secretariat to contribute a foreword and an introduction, which the UNCITRAL secretariat gladly accepted.
UNCITRAL entered the area of insolvency law in the early 1990s with some hesitation because it was considered difficult to harmonize that area of law at the global level. Earlier attempts to do so in other international organizations either failed or ended up being limited in scope and outreach. At that time, following the Congress, (2) the Colloquiums (3) and consideration of a feasibility study, (4) the view prevailed in UNCITRAL that it would be feasible and desirable for UNCITRAL to find internationally acceptable solutions to the practical problems caused by disharmony among national insolvency laws, in particular as they relate to cross-border insolvencies. (5) Since then, UNCITRAL has adopted various legislative texts in the field of insolvency law, addressing both domestic and cross-border aspects of insolvency. (6) Those texts have been used worldwide as a benchmark for insolvency law reform by States, organizations and other relevant stakeholders.
Their adoption by UNCITRAL became possible because of the growing recognition that the absence of coordination and cooperation in cross-border insolvencies and of a domestic legislative framework that enable and facilitate such coordination and cooperation reduces the possibility of rescuing financially troubled but viable business, impedes a fair and efficient administration of insolvencies, makes it more likely that the debtor’s assets would be concealed or dissipated and hinders reorganization or liquidation of debtor’s assets and affairs that would be the most advantageous for the creditors and other interested persons, including the debtors and the debtors’ employees. (7) UNCITRAL has become the main international forum to discuss ways of enabling, facilitating and enhancing cross-border insolvency coordination and cooperation. Developed and developing countries, relevant intergovernmental and invited non-governmental organizations, representing the principal economic and legal systems of the world have been working in UNCITRAL all these years towards finding internationally acceptable solutions to insolvency law matters. Finding such solutions is not an easy task because insolvency law is deeply embedded in legal traditions and systems and touch upon delicate public policy issues (e.g. those related to sovereignty of States and competences of courts). Finding such solutions that would also stand the test of time is even more difficult because insolvency law changes in response to an economic crisis and, more recently, to the pandemic as well as climate change, digital economy and other related developments. Insolvency law reform is also constantly catching up with evolving business and debt restructuring schemes and the domestically and internationally accumulated experience with their implementation.
The UNCITRAL Model Law on Cross-Border Insolvency (1997) (MLCBI), that celebrated its 25th anniversary in 2022, (8) is the first text of UNCITRAL in the area of insolvency law and has been shaping the subsequent work program of UNCITRAL in the area of insolvency law, including the current work on civil asset tracing and recovery (ATR) and applicable law in insolvency proceedings (APL). At the time when very few jurisdictions had any legislation enabling judicial cooperation in cross-border insolvencies, MLCBI became a ground-breaking text. Until now, MLCBI is used by States, bilateral and multilateral donors, other international organizations and individual experts as a template for enacting a domestic cross-border insolvency law. The number of the MLCBI-enacting jurisdictions is increasing, proving relevancy of the text. (9) Those jurisdictions are from different regions and legal traditions, which is remarkable taking into account different approaches of common and civil law jurisdictions to treating cross-border insolvency cases.
MLCBI has influenced not only cross-border insolvency regulation but also substantive insolvency law reform around the world. The link between domestic and cross-border insolvency matters is evident, for example, in reorganization proceedings: the centre of the debtor’s main interests (COMI) tends to move and insolvency proceedings tend to commence in reorganization friendly jurisdictions. That link is also present in the treatment of foreign creditors and ranking of their claims, in particular fiscal claims since historically cross-border insolvency cooperation was hindered by fears that local assets, if surrendered to the foreign proceeding, would be used to satisfy foreign fiscal claims. The link between domestic and cross-border insolvency matters is also present, for example, in MLCBI provisions on the public policy exception, notices and notifications, presumption of insolvency, the scope, duration, modification and termination of a stay of proceedings, relief, standing, adequate protection of creditors and other interested persons, and actions to avoid acts detrimental to creditors. MLCBI defers to domestic insolvency laws as regards most of those matters and also as regards determination of the proceeding in which particular assets should be administered.
Since its adoption, MLCBI and experience with its enactment and use have been analyzed by many scholars and practitioners. This book is not an exception. MLCBI is specifically addressed in an article by Judge Vallens in the first part of the book but is also in the focus of analysis from different angles in many other articles included in the book. Other UNCITRAL insolvency texts are addressed less frequently and in less detail.
There are quite a few of them and it is quite a challenge to analyze them all with sufficient level of detail in a single book, and the book does not attempt to do so. That type of material can be found in UNCITRAL texts themselves, including guides to enactment (and interpretation) of the UNCITRAL model laws in the area of insolvency law, the UNCITRAL Legislative Guide on Insolvency Law and other texts. The value of the book is in views of experts on matters they chose to address in this book. Those matters are presented in three parts. The first part surveys most but not all texts of UNCITRAL in the area of insolvency law. The second part gives an overview of implementation of UNCITRAL insolvency texts in different regions. The book concludes with discussion of civil law and common law perspectives on UNCITRAL insolvency texts and perspectives of codification of international insolvency law by UNCITRAL.
The views presented in the book are as diverse as experts themselves, who come from all over the world and have different experience with UNCITRAL insolvency texts. Some contributors were directly involved in the work of UNCITRAL on an insolvency text that they chose to comment on in this book. They refer to their experience and takeaways from that preparatory process. Some of them are also practitioners who witness how those texts have been used in their jurisdictions and across borders. They are joined by other practitioners who, although not having been involved in UNCITRAL’s preparatory work, actively promoted the use of UNCITRAL insolvency texts and their uniform application and interpretation by courts. Many contributors are academics who have been commenting on UNCITRAL work in the area of insolvency law for years, agreeing on some points and disagreeing on others, as evidenced by their contributions to the book.
A reader should therefore expect different views and styles but definitely not indifference about what emanates from the work of UNCITRAL in that area of law. All contributors care about the best possible solution to addressing real problems arising from disparities of national insolvency laws and approaches. In their contributions, they touch upon some of those disparities, including as regards assistance to foreign proceedings and foreign representatives, recognition and enforcement of insolvency-related judgments (e.g. on discharge of debt), avoidance, liability of directors, enterprise group insolvency and applicable law in insolvency proceedings.
Some see much unfinished work by UNCITRAL in this area of law and advocate further work without any condition, for example on the use of alternative dispute resolution (ADR) mechanisms in insolvency proceedings or statutory alternatives to cross-border insolvency agreements. Others see the need for further work but are concerned about risks of the piecemeal approach and proliferation of UNCITRAL insolvency standards resulting in the fragmented framework and inconsistencies. They suggest alternative solutions, including preparing an international convention or a comprehensive uniform law based on UNCITRAL insolvency texts, aligning and updating them as necessary, recalling the earlier similar proposals in UNCITRAL. (10) Others lean towards promoting the work already accomplished. In the latter context, some see much potential in the use of UNCITRAL texts in particular in the European Union (EU) countries for improving the current exequatur procedure used for cross-border insolvency relations with non-EU countries, noting that UNCITRAL approaches have already been impactful in those countries, either through their transposition in the EU insolvency texts or directly in EU countries.
Several threads can be identified in the book, including: (a) pros and cons of the soft law approach selected by UNCITRAL for fulfilling its mandate in the area of insolvency law; (b) methods of work that were used in preparing UNCITRAL insolvency standards; and (c) uptake and the future of MLCBI and perspectives of enactment of the two other UNCITRAL model laws in the area of insolvency law. The following sections, after providing a general overview of UNCITRAL insolvency texts, including MLCBI, react to some views expressed under each of those threads.
(a) Overview of UNCITRAL insolvency texts
MLCBI was prepared in response to the increasing incidence of insolvencies with cross-border elements as a result of the global expansion of trade and investment. Although not addressing all issues involved in cross-border insolvencies, for example jurisdictional, applicable law and enterprise group insolvency issues are omitted from its scope, MLCBI provides an essential legal framework for coordination and cooperation in cross-border insolvency cases involving a single debtor (an enterprise or individual) with foreign creditors or assets in more than one State. While respecting national procedural and judicial systems, the text offers to States a legal framework that minimizes formality, time and costs for foreign insolvency representatives to obtain recognition of foreign insolvency proceedings and to obtain relief necessary to ensure effectiveness of foreign insolvency proceedings.
MLCBI has become an important tool for judges and insolvency and other practitioners from all over the world, including from non-MLCBI enacting States, for tracing and recovering insolvency estate assets across borders, expediting liquidations of non-viable businesses and distribution of proceeds and restructuring debt to prevent insolvencies and liquidations of viable businesses. MLCBI-related abstracts published every year in the UNCITRAL Case Law on UNCITRAL Texts (CLOUT) system (11) demonstrate how judges have applied and interpreted the text. The Digest of Case Law on the UNCITRAL Model Law on Cross-Border Insolvency, (12) prepared by the UNCITRAL secretariat, organises the MLCBI-related case law collected in CLOUT under each article of MLCBI. A related publication, “UNCITRAL Model Law on Cross-Border Insolvency: The Judicial Perspective”, (13) prepared with inputs of judges experienced in cross-border insolvency cases, discusses MLCBI-related case law from a judge’s perspective, in the order that reflects the sequence in which particular decisions would generally be made by the receiving court under MLCBI. Both texts, while drawing attention of the reader to emerging uniform and divergent interpretations of MLCBI, adopt a neutral tone to avoid any critique of case law or instruction to judges. They are among other important tools, such as insolvency judicial colloquia, that encourage judges to consider how MLCBI has been applied and interpreted by courts in different States. Together, they aim at building capacity of judges to handle cross-border insolvency cases and apply and interpret their States’ domestic enactment of MLCBI in the light of its international origin and the need to promote uniformity in its application and the observance of good faith in accordance with article 8 of MLCBI. Some of those tools are discussed by Paul Heath in part one of this book.
The UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation (14) (analyzed by Robert van Gallen in part one of this book) is another UNCITRAL text of relevance to judges but it is also relevant to insolvency practitioners. It discusses various ways in which cooperation in cross-border insolvency cases can be achieved under article 27 of MLCBI and compiles experience with the use of cross-border insolvency agreements. UNCITRAL may decide to update that text in the light of the experience accumulated since its adoption with the implementation of cross-border agreements and other forms of cross-border insolvency cooperation among judges and insolvency representatives.
Some case law on the MLCBI has raised questions relating to the interpretation of certain provisions of the MLCBI, in particular, the meaning of COMI, the scope of the public policy exception and application of the relief provisions. To provide additional information and clarify those issues of interpretation and application, the 1997 Guide to Enactment accompanying the MLCBI was revised, and on the basis of a revised text, without changing the substance of the MLCBI itself, the Commission adopted in 2013 the Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-Border Insolvency.
Experience with the use of MLCBI led to the preparation of two subsequent UNCITRAL model laws in the area of insolvency law: the UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgements (2018) (MLIJ); and the UNCITRAL Model Law on Enterprise Group Insolvency (2019) (MLEGI). Both are accompanied by their respective guides to enactment. The UNCITRAL Model Law on Recognition and Enforcement of Insolvency-related Judgments (MLIJ), (15) adopted in 2018, analyzed in part one of this book by Professor Rodriguez, is partly a response to the case law on article 21 of the Model Law whereas the UNCITRAL Model Law on Enterprise Group Insolvency (MLEGI), (16) adopted the following year, in 2019, addressed in an article by Professor Irit Merovach in part one of this book, extends MLCBI provisions to the enterprise group context. The UNCITRAL secretariat produced the Consolidated Text of the UNCITRAL Model Laws on Cross-Border Insolvency, Recognition and Enforcement of Insolvency-related Judgments and Enterprise Group Insolvency together with the Guidance Note on Enacting Two or More of the UNCITRAL Model Laws on Insolvency (2021). (17) They illustrate how those two additional model laws can be enacted together with or in addition to the MLCBI.
In parallel with cross-border insolvency law issues, UNCITRAL has addressed substantive insolvency law matters. Since 2004, it has worked on different parts of the Legislative Guide on Insolvency Law. (18) With the addition of the text on insolvency law for micro- and small enterprises (MSEs) in December 2021, (19) the Guide now consists of five parts:
– part one, adopted in 2004 discusses, in addition to the key objectives and the structure of an effective and efficient insolvency law, general features of an insolvency law, including relationship between insolvency law and other law, mechanisms for resolving a debtor’s financial difficulties, including voluntary restructuring negotiations, and institutional framework. It thus lays down fundamentals of an effective and efficient insolvency law;– part two, adopted in 2004, on core provisions for an effective and efficient insolvency law, elaborates on how those fundamentals are to be implemented through procedural steps in the context of standard business reorganization and liquidation proceedings (reference in part two is to standard business reorganization and liquidation proceedings because part five of the Guide addresses simplified business reorganization and liquidation proceedings). It discusses eligibility, jurisdiction, applicable law and commencement of insolvency proceedings and procedural and substantive insolvency law issues, such as (i) treatment of assets, contracts, set-off and claims upon commencement of insolvency proceedings, (ii) avoidance, (iii) rights and obligations of different participants in insolvency proceedings, (iv) issues of reorganization, including of expedited reorganization that envisages procedures and safeguards for court approval of the results of voluntary out-of-court restructuring negotiations, and (v) management and conclusion of proceedings, including submission, verification and admission of claims, realization of assets, priorities and distribution of proceeds and discharge. Part two contains several annexes, including on the treatment of secured creditors in insolvency proceedings and the text of MLCBI;– part three, adopted in 2010 and supplemented by the MLEGI in 2019, addresses the treatment of enterprise groups in insolvency, elaborating on the treatment of corporate groups in insolvency touched upon in part two of the Guide;– part four, on directors’ obligations in the period approaching insolvency, adopted in 2013 and expanded by a text on obligations of directors of enterprise group companies in 2019, addresses the key elements of directors’ obligations in both contexts - of an individual company when that company faces imminent or unavoidable insolvency and of an enterprise group, when the group as a whole or one or more of its members are in such situation; and– part five provides for a simplified insolvency regime (the recommendations included in part five are analyzed by Ms Talero in part one of this book). It was prepared on the basis of the preceding parts of the Guide, adjusting provisions found there to accommodate characteristics of MSEs and their specific needs in financial distress. The work on part five was undertaken in parallel with the World Bank Group’s work on the same topic and with the work of UNCITRAL Working Group I (Micro, Small and Medium Enterprises (MSMEs)) that aimed at reducing the legal obstacles faced by MSMEs throughout their life cycle. An annex to part five contains the tables of concordance between recommendations of the Guide related to standard business insolvency proceedings and those related to simplified insolvency proceedings. An online version of that table allows a reader to compare provisions of the Guide applicable to standard and simplified business insolvency proceedings side-by-side. (20)Where it was feasible, UNCITRAL included the best practice recommendations in the Guide; where it was not, UNCITRAL provided the comparative overview of the treatment of insolvency matters in different jurisdictions.
Mr. Luis Mejan in his article on the Guide in part one of the book refers to the Guide as “the best Insolvency Law treatise”. In his view, UNCITRAL’s work on the Guide is bound to continue for the benefit of domestic legislators that need UNCITRAL’s guidance on substantive insolvency law issues not yet addressed in the Guide.
(b) Soft law approach selected by UNCITRAL for its work in the area of insolvency law
Some contributors advocate soft law approach chosen by UNCITRAL for its work in the area of insolvency law, others criticize it (see e.g., articles by Mevorach, Paulus and Ballesteros Barros). Some considerations raised in that context may be found not specific to the work of UNCITRAL in the area of insolvency law since they apply broadly to international law making, whether public or private, by UNCITRAL or other international bodies. Others may indeed be more specific to the work of UNCITRAL in the area of international commercial law generally rather than in the area of insolvency law specifically.
The UNCITRAL’s choice of the form of an instrument that it prepares is influenced by many factors, primarily how ripe the topic is for unification at the international level. In some areas of law, such as e-commerce, preparation of a convention was justified by the success of the earlier UNCITRAL soft law texts on the same or similar subjects. The experience with the use of those texts, in particular the level of their acceptance by States through enactment at the national level without or with only few deviations, indicated the readiness of the international community to commit to a treaty.
The opposite is also true. The experience with hard law texts on the same or relevant subjects may discourage preparation of a new hard law text. For example, MLCBI was clearly influenced, including as regards COMI and provisions on presumption of insolvency, by international conventions that addressed cross-border insolvency matters but have never entered into force.
Competing interests, conflicting views and different approaches to regulating insolvency law and feasibility of reconciling them through distinct techniques used in drafting a hard law as opposed to a soft law may also influence the form of an instrument. Soft law instruments allow for more flexibility (e.g. in formulating provisions, including by setting out options, and deferring certain matters to the commentary), as the Guide and the UNCITRAL insolvency model laws demonstrate, than hard law texts where deviations from the default provisions presented in the text very often take the form of declarations, reservations and the like unless the party autonomy provisions are included which are hardly relevant in the context of insolvency law.
Since the MLCBI’s adoption, it is unquestionable that international insolvency law framework has evolved significantly, to such extent that some notions found in UNCITRAL insolvency texts are binding and directly applicable in some States. Nevertheless, the experience with the enactment, application and interpretation of MLCBI has been mixed, as evidenced by the articles of many contributors to this book and also statements made during the stock-taking conference dedicated to the 25th anniversary of MLCBI.
Some States introduced significant deviations upon MLCBI’s domestic enactment (such as reciprocity, omission of article 20, no COMI provisions and no differentiation between main and non-main proceedings). Other States introduced minor but substantive deviations, such as omission of the word “manifestly” from article 6 of MLCBI, which lowered the threshold for invoking a public policy exception as a justification for non-recognition of foreign insolvency proceedings. Other States introduced the MLCBI framework without removing a pre-existing framework for recognition of and assistance to foreign insolvency proceedings with the result that two not completely aligned and hence competing frameworks exist. Some courts applied and interpreted the text very flexibly, including for recognition of schemes of arrangement and handling enterprise group insolvency. As Mr Glosband notes in his article in this book, “when the impact of MLCBI was perceived to create a barrier, the courts mapped a route around the barrier”. He also notes that, at the same time, domestic courts created barrier not envisaged in MLCBI, for example by establishing the debtor presence requirement (Barnet) or imposing a recognition requirement for the foreign representative’s access to the domestic relief not applicable to other parties that can seek comity to orders entered in foreign proceedings without the need for prior recognition of those proceedings.
All of these raises legitimate doubts about homogeneity of MLCBI’s transposition into national law and practice. However, it is also questionable whether a hard law text would be able to improve the situation at the global level where there are no supranational supporting legal and institutional framework and infrastructure, for example automatic recognition of judgments, as found, for example, in the EU. (21) Rather the experience with the use of MLCBI may influence further reform of domestic insolvency law. For example, some States that introduced reciprocity requirement upon enactment of MLCBI are in the process of reconsidering desirability of maintaining it, as was reported at the conference dedicated to the 25th anniversary of MLCBI. (22) Some States chose not to introduce such a requirement because of the experience of jurisdictions that did, as an article by Mr. Goldberg in this book, with reference to Chile, informs. The case law converges on such matters as determination of COMI although not yet as regards the date with respect to which that determination is made (e.g. with reference to the date of opening of the foreign proceeding, the date of application for recognition of that proceeding or the date when the recognition application is actually considered by the court). (23)
Another factor that influences the selection of the form of an instrument is the primary objectives intended to be achieved by that instrument. While the focus of the comments in the book is almost exclusively on codification and unification aspects of the UNCITRAL mandate in the area of insolvency law, modernization aspects are absent from that discussion although the gradual shift from unification to more modest harmonization and modernization aspirations may be observed throughout the existence of UNCITRAL, and that shift influenced also the selection of the form of UNCITRAL instruments, from predominantly conventions prepared during its early years to model laws and guidance texts. It is not to say that the preparation of conventions, because of that shift, has been completely excluded. Just recently several conventions have emanated from the work of UNCITRAL. (24) However, in projects that primarily pursue modernization objectives, the form of a convention is not always the best choice.
The modernization impact of the UNCITRAL texts has been quite prominent, including in the area of insolvency law, from the first text, MLCBI, to UNCITRAL’s most recent one, on a simplified insolvency regime for MSEs in 2021. (25) For example, in many countries, until recently or even now, there have been separate insolvency proceedings for legal persons and for merchants who are natural persons. UNCITRAL insolvency texts have always advocated the unitary approach, and that approach has gained momentum in several jurisdictions. In addition, in many countries, insolvency proceedings meant or means only liquidation. Throughout its work in the area of insolvency law, UNCITRAL has followed the broad understanding of “insolvency proceedings” as encompassing not only liquidation of insolvent debtors but also reorganization of viable businesses in financial distress. Recognizing the broader objectives of insolvency proceedings, including preservation of employment and investment, UNCITRAL texts introduce many elements that make timely and successful reorganization possible in order to prevent insolvency (e.g. provisions on the treatment of ipso facto clauses, the use of encumbered assets in reorganization, protection and priority of post-commencement finance). Those features may be found in many modern domestic insolvency laws.
UNCITRAL also took a lead in addressing other insolvency prevention aspects. For example, part four of the Guide deals with directors’ obligations in the period approaching insolvency, the area hardly regulated in insolvency law in many jurisdictions. If provisions on that topic are found, they are in company law or criminal law that do not address insolvency law perspectives. Although issues addressed in part four of the Guide are unquestionably at the juncture of insolvency and other laws, they are treated in the Guide from the insolvency law perspective. Many insolvency prevention mechanisms are found also in part five of the Guide, including early warning signals to MSEs about their financial difficulties, removing disincentives for the use of informal debt restructuring negotiations and providing incentives for participation in informal debt restructuring negotiations and provision of pre-commencement business rescue finance.
Modernization aspects are also present in UNCITRAL’s innovative solutions to enterprise group insolvency. Many States adhere to a separate legal entity approach. However, where the debtor’s business is part of an enterprise group and reliant, at least to some extent, on other enterprise group members for the provision of vital functions (e.g. financing, accounting, legal services, suppliers, markets, management or intellectual property), addressing the financial difficulties of that debtor in isolation is likely to be difficult, and in some cases, impossible. UNCITRAL insolvency texts address intricate issues involved in enterprise group insolvencies, attempting to find the right balance among various considerations.
More recently, in part five of the Guide and a stand-alone legislative guide on MSE insolvency, UNCITRAL adapted the standard business insolvency regime to characteristics of MSEs and their specific needs in financial distress, such as creditor disengagement, concerns over stigmatization and the lack of financial and business sophistication and sufficient assets in the insolvency estate. In many jurisdictions, until present, insolvency proceedings may not be commenced at all or they are terminated upon verification that the debtor has no funds to cover costs of insolvency proceedings and to ensure minimum distribution of proceeds to creditors. This approach does not resolve financial difficulties of honest but unfortunate debtors through discharge of their debt and does not facilitate the orderly exit of non-viable businesses and timely reorganization of viable businesses. It may also lead to proliferation of zombie firms and informal businesses. It also prevents addressing abuses through verification of the debtor’s assets, operations and affairs for protection of interests of creditors that themselves may be unsophisticated in business and insolvency matters to take initiative on those matters. In addition, this approach discriminates MSEs with respect to opportunities to reach workable and timely solutions with creditors for debt restructuring and business and management reorganization since the result of application of that approach is that such opportunities are made available only to larger businesses. MSEs could also benefit from such opportunities, with some support and guidance and in a simpler and faster way taking into account their less complex debt, capital and business structure.
UNCITRAL recommends making insolvency proceedings available and accessible to MSEs at an early stage of financial distress without the need to prove insolvency and to MSEs with no funds to cover the costs of insolvency proceedings. It introduces other modern elements, such as mechanisms of deemed approval, competent authority’s administration of simplified insolvency proceedings alone or with an independent professional, institutional support to MSEs, procedural consolidation and coordination of linked proceedings and special treatment of vulnerable guarantors. Appropriate protections are built, including in the form of supervision by the competent authority, possible displacement of the debtor-in-possession, objection mechanisms and conversion of proceedings. The UNCITRAL work on part five of the Guide coincided with measures put in place by States to mitigate impact of COVID-19 restrictions on businesses, in particular MSEs but even before that, many States attempted to put in place a simplified insolvency regime for MSEs. Part five of the Guide, with its focus on simplification, reduction of cost and time, facilitation of debtor and creditor participation in proceedings, preservation of the integrity of the proceeding, and prevention of MSE insolvency, may help in those efforts.
The UNCITRAL secretariat has observed gradual convergence of domestic insolvency laws on the matters mentioned above, perhaps under influence of the Guide. “Perhaps”, because it is difficult to ascertain the direct influence of the Guide, unlike the model laws, on domestic insolvency law reform. Whereas provisions of model laws could be traced almost verbatim in national laws of some enacting States, the impact of legislative guides is subtler and less visible. Nevertheless, some States explicitly acknowledge that they have used the Guide in their insolvency law reform, and some States bring those facts to the attention of UNCITRAL, the Working Group and the UNCITRAL secretariat (for example, Chile and Colombia in Working Group V as regards part five of the Guide).
(c) Methods of work that were used for preparing insolvency texts
Several authors highlight the importance of building consensus on UNCITRAL insolvency standards to ensure their worldwide acceptance. Views differ on how well work methods of UNCITRAL, in particular its working groups that prepared UNCITRAL insolvency texts, were adapted to sensitivities arising from the usual common law and civil law discourse as well as territorial, universal and modified universal approaches to treating insolvency law matters (see e.g. articles by van Gallen, Rodriguez, Paulus). Having raised concerns over the dominant role of some delegations in shaping the work program and products of UNCITRAL in this area of law and about not always inclusive and transparent deliberations that had taken place in UNCITRAL working groups that prepared UNCITRAL insolvency texts, some contributors welcome the evolution of Working Group V’s methods of work.
The issues raised in that context may become the subject of a separate book in the light of complex decision-making and taking processes in the United Nations. Some considerations raised in the book in that context, like in the context of the form of an instrument, may be broadly applicable to international law making, and not specific to the work of UNCITRAL in the area of insolvency law. Some statements are debatable, for example, about the absence of the voice of certain delegations in UNCITRAL’s work in the area of insolvency law and also narrow references to the drafters and what they envisaged and what they did not envisage when preparing a particular UNCITRAL text.
State members of UNCITRAL are the primary drafters of UNCITRAL texts. They may choose to use some but not all layers of decision-making usually involved in UNCITRAL legislative processes (e.g. a working group, the Commission, the Sixth Committee of the United Nations General Assembly, the United Nations General Assembly plenary meetings as well as informal consultations among interested delegations that may take place during a session or between sessions). Some of those layers are less visible than the others. In addition, the absence of the voice may signify the absence of objection and hence consensus in the United Nations’ meaning of that term.
Many factors may explain participation dynamics of various stakeholders in UNCITRAL deliberations, including that some States are genuinely more interested in some areas of law than the others and their resources may be overstretched to cover them all evenly, necessitating to prioritize and attend the matters of the most significance to their domestic context. Some delegations may choose to abstain from deliberations because of the absence of the serious reason to raise voice, whether that voice is approval, disapproval or objection, because they are satisfied with the result. That result may be careful formulation of provisions, with varying degree of their precision or vagueness, and non-inclusion of some provisions in the text. Some drafting techniques are commonly used to avoid dictating to States a particular solution.
(d) Uptake and the future of MLCBI and perspectives of enactment of the two other UNCITRAL model laws in the area of insolvency law
The steadily increasing number of States and jurisdictions whose legislation is based on or influenced by MLCBI (26) and whose case law refers to MLCBI proves the continued relevance, flexibility and adaptability of MLCBI to different circumstances and needs in cross-border insolvencies. The range of those States and jurisdictions speaks for itself and against a misconception that text is more suitable for common law jurisdictions. They are coming from different legal traditions, including more recently Islamic law, proving that the text was not prepared for a particular region or group of countries. (27)
As was noted at the conference dedicated to the 25th anniversary of MLCBI, deviations from MLCBI upon enactment were explained not so much by legal traditions of enacting jurisdictions but by other factors, such as domestic insolvency law provisions and approaches of enacting jurisdictions to cross-border insolvency matters generally at the time of enactment of MLCBI. For example, the absence of a stay upon commencement of insolvency proceedings in the domestic insolvency framework might explain non-enactment of article 20 of MLCBI in some jurisdictions. States with a moderately territorial approach to handling insolvency matters were likely to adopt MLCBI in full compared with States that had taken an exclusively territorial approach to insolvency matters.
In fact, the enactment of MLCBI may not be indicative of its use or adequate use at all. There are examples of jurisdictions that enacted MLCBI long time ago but where the text had never or rarely been used. Different reasons may explain that situation, including the absence of awareness about the text and the lack of local capacity to use it especially where the MLCBI enactment was triggered by the need for urgent reforms in response to an economic crisis, which did not allow discovering and putting in use the full potential of the text by judges and practitioners. In other jurisdictions, the use of the text may be sub-optional (e.g. long recognition procedures, excessive controls over the foreign representative).
Articles by Professors Oh, Chen, Sarra, Streten, Keeper, Dasso, Goldenberg Serano, Rivera Andrade and Pajares Echeverria in part two of the book are informative in that respect. The UNCITRAL secretariat concurs with observations of most of them that the MLCBI’s impact is considerably broader and cannot be assessed only with reference to the domestic enactments of MLCBI or case law that makes explicit reference to MLCBI.
As regards MLIJ, the book raises questions on whether MLIJ is indeed a stand-alone text since there is clearly a close connection between MLIJ and MLCBI. Despite that undisputed connection, MLIJ was prepared as a stand-alone text separate from MLCBI. MLIJ and MLCBI have different scopes and are not completely aligned. MLIJ is designed to allow any foreign insolvency-related judgment to be recognized and enforced, including a judgment relating to the recovery of assets of the debtor located in a jurisdiction whose insolvency proceedings would be neither a main nor a non-main proceeding under the MLCBI.
The work on MLIJ had its origin, in part, in certain judicial decisions related to MLCBI (28) that led to uncertainty concerning the ability of some courts, in the context of recognition proceedings under MLCBI, to recognize and enforce judgments given in the course of foreign insolvency proceedings, such as judgments issued in avoidance proceedings. Such uncertainty arose on the basis that neither article 7 nor 21 of MLCBI explicitly provides the necessary authority. By adopting MLIJ, UNCITRAL resolved that uncertainty (29) and also addressed the lack of an international instrument covering the recognition and enforcement of insolvency-related judgments. (30)
Considering that MLIJ is a soft law instrument, there are numerous options for its enactment. MLIJ could be enacted alone or together with MLCBI depending on the needs of a particular jurisdiction. Adjustments could be made in its scope to make it supplementary to MLCBI, avoiding any overlaps between the national enactments of those two model laws, or, conversely, to make the national enactment of MLIJ completely self-sufficient and independent from the framework provided in MLCBI that the State might have already enacted or may or may not decide to enact. For example, States that have already provisions on recognition and enforcement of foreign judgments and those provision also encompass insolvency-related judgments could supplement those provisions with any additional elements found in MLIJ, if at all necessary. Enactment of MLIJ as a whole would not be required in such case. Those States that have provisions on recognition and enforcement of foreign judgments but those provisions exclude insolvency-related judgments would need to analyze reasons for those exclusions and how MLIJ could fill in the gaps. No need to enact all provisions of MLIJ would arise in those jurisdictions either since many provisions of MLIJ repeat the usually found provisions on recognition and enforcement of foreign judgements. However, some provisions of MLIJ are insolvency specific and may usefully supplement that framework. In both cases, it would be opportune upon enacting the MLIJ insolvency-specific provisions to clearly delineate insolvency-related judgments from those that would fall under other frameworks for recognition and enforcement of foreign judgements (such as civil and commercial) to avoid overlaps and confusion.
Another question raised by the book is whether MLIJ is at all needed in MLCBI-enacting States. Since one of the origins of MLIJ may be traced in the MLCBI-related case law, the answer may be obvious that the text is indeed needed. However, article X adopted together with articles 1 to 16 of MLIJ may imply that in some MLCBI-enacting States it would be sufficient to clarify that the local enactment of MLCBI encompasses recognition and enforcement of insolvency-related judgments. Some MLCBI-enacting States may take it further than article X that cross-refers in that context to article 21 and hence to discretionary relief under MLCBI, and provide that their local enactment of MLCBI encompasses recognition and enforcement of insolvency related judgments not only as a discretionary measure under article 21 but also as a mandatory measure when certain conditions are satisfied, including when granting a provisional relief under article 19 of MLCBI. The need for enactment of other MLIJ provisions in MLCBI-enacting States may or may not arise depending on other considerations prevailing in a particular jurisdiction, some of which have already been addressed above.
Different issues are raised in the book as regards the fate of MLEGI, in particular whether it is realistic to expect that the critical mass of States will enact MLEGI in the nearest future to make its mechanisms effective. In that context, it is worth recalling that, while the text is relatively recent (adopted at the fifty-second session of UNCITRAL, in 2019) and introduces some new concepts, such as “group insolvency solution” and “planning proceeding”, it does not address completely new matters and does not address them in a completely new way. MLEGI builds on several widely-agreed fundamental principles of the MLCBI framework, extending it from a single debtor to multiple debtors that are members of the same enterprise group. It preserves the jurisdiction of the State in which each group member has its COMI and the ability of that State to commence insolvency proceedings in respect of a group member as and when such proceedings might be required. Like MLCBI, it builds safeguards to protect the interests and expectations of creditors and other interested persons. It is similar to MLCBI in other respects, in particular as regards provisions on public policy exception, cooperation and coordination, relief, recognition and protection of creditors and other interested persons. MLEGI uses the same terminology as other UNCITRAL insolvency texts (“insolvency representative”, “insolvency proceeding”, “main” and “non-main” proceeding, “enterprise”, “enterprise group” and “control”). Some of its terminology, like “group representative”, drew from the definitions included in those other texts. MLEGI also extends recommendations of part three of the Guide, which in turn expands on the relevant section in part two of the Guide. Those parts of the Guide have already influenced enterprise group insolvency law reform and practices in some States, as some articles in this book indicate (e.g. appointment of the same insolvency representative and members of creditor committees for different group members, conclusion of cross-border insolvency protocols). Most provisions of the MLEGI, like those parts of the Guide, could be used, in addition to the cross-border insolvency context, purely in the domestic context, to avoid parallel domestic proceedings related to the same enterprise group.
MLEGI recognizes that key to facilitating the conduct of insolvency proceedings related to members of the same enterprise group is their centralization. To that end, MLEGI envisages: (i) the development of a group insolvency solution for the whole or part of an enterprise group in a planning proceeding commenced at the location where at least one group member has COMI; (ii) voluntary participation of multiple group members in that planning proceeding for the purposes of coordinating a group insolvency solution for relevant enterprise group members; (iii) appointment of a group representative to coordinate the development of a group insolvency solution in the planning proceeding; (iv) recognition of the planning proceeding as well as measures to support the recognition and formulation of a group insolvency solution; and (v) measures designed to minimize the commencement of insolvency proceedings relating to enterprise group members participating in the planning proceeding by according the appropriate treatment to claims of creditors of those enterprise group members in the main proceeding. In addition to these core provisions, MLEGI provides for a set of supplemental provisions to States that may wish to adopt a more extensive approach with respect to the treatment of the claims of foreign creditors in enterprise group insolvency, not limiting the possibility to accord the appropriate treatment to claims of creditors of enterprise group members only in the main proceedings. It should be noted that provisions on the treatment of the claims of foreign creditors are not enterprise group specific. They may be used in the MLCBI context as well, i.e. to prevent parallel proceedings with respect to the same debtor.
To conclude on that thread, in the end, what would influence the enactment of those two more recent UNCITRAL insolvency model laws is the existing stance of States to cross-border insolvency matters. As the experience with the enactment of MLCBI demonstrates, the cautious “wait and see” approach may prevail for some time. The champions are needed but the usual suspects may be exactly those States that do not see the need for enacting those additional texts in the light of the domestic law and practices, including the flexible use of MLCBI in their jurisdictions for enterprise group insolvencies and the already existing broad and enabling domestic framework for recognition and enforcement of foreign judgments including insolvency-related judgements. In any event, the two model laws are expected to be influential and impactful, like MLCBI has been, since they are based on pragmatic approaches to resolution of complex cross-border insolvencies such as Nortel or insolvencies of crypto exchanges with digital assets and numerous unknown creditors spread around multiple jurisdictions. Some of those approaches, such as court-to-court communications and cooperation as well as communication, cooperation and coordination among insolvency practitioners, have already been sufficiently tested and should not therefore raise any doubt about their utility. Others are less tested. The experience with their use may influence their enactment in domestic laws.
Conclusion
This concludes the introduction to the book, which hopefully sparkled interest of the reader to read the book further. The critical analysis and diverse and frank views of contributors make the book quite interesting to read. It is very informative to members of the insolvency team in the UNCITRAL secretariat whose task is, among others, to monitor and assess experience with the use of UNCITRAL texts and to bring relevant developments to the attention of UNCITRAL. On the basis of those assessments, UNCITRAL, as the core legal body within the United Nations system in the field of international trade law, (31) may decide to undertake new work in the area of insolvency law, which may take different forms, including revision of its earlier texts. (32)
The book gives much food for thought to the current and future delegates and observers to UNCITRAL Working Group V (Insolvency Law) and its secretariat as regards legacy of their work and the importance of not only the results but also the way those results are achieved, which should aim at reconciling domestic, regional and international insolvency law dynamics and differences: from different preferences for the use of certain terminology or drafting style to more substantive issues such as advocating domestic or regional, debtor-friendly or creditor-friendly, approaches to regulating insolvency matters at the global level. In the area where for historical or other reasons, some jurisdictions do play a leading role in shaping jurisprudence and practices on insolvency law matters, one cannot be sensitive and cautious enough to those issues.
The book will undoubtedly contribute to increasing awareness about UNCITRAL insolvency standards and their uptake around the world. We hope that it will produce considerably broader positive impact on the fulfillment of UNCITRAL’s mandate in the area of insolvency law including by stimulating further constructive discourse and finding solutions to legal obstacles to international trade arising in the area of insolvency law.
The UNCITRAL secretariat appreciates the time and effort made by all concerned to put this book together and hopes that readers will find it useful like the UNCITRAL secretariat did.
Senior Legal Officer in the United Nations Office of Legal Affairs, the Secretary of UNCITRAL Working Group V (Insolvency Law).
Ver Texto (2)See Proceedings of the Congress of the United Nations Commission on International Trade Law, New York, 18-22 May 1992. Available at uniform_commercial_law_congress_1992_e.pdf
Ver Texto (3)See the report of the UNCITRAL-INSOL Colloquium on Cross-Border Insolvency (Vienna, 17-19 April 1994) in document A/CN.9/398 and the report of the UNCITRAL-INSOL Judicial Colloquium on Cross-Border Insolvency (Toronto, 22-23 March 1995) in document A/CN.9/413. Available at https://uncitral.un.org/en/commission and https://uncitral.un.org/en/colloquia/insolvency.
Ver Texto (4)A/CN.9/378/Add.4.
Ver Texto (5)See the report of UNCITRAL on the work of its twenty-sixth session (Vienna, 5-23 July 1993) in Official Records of the General Assembly, Forty-eighth Session, Supplement No. 17 (A/48/17), paras. 302-306; the report of UNCITRAL on the work of its twenty-seventh session (New York, 31 May-17 June 1994) in Official Records of the General Assembly, Forty-ninth Session, Supplement No. 17 (A/49/17), paras. 215-222; and the report of UNCITRAL on the work of its twenty-eighth session (Vienna, 2-26 May 1995) in Official Records of the General Assembly, Fiftieth Session, Supplement No. 17 (A/50/17), paras. 382-393.
Ver Texto (6)They are available at https://uncitral.un.org/en/texts/insolvency.
Ver Texto (7)See e.g. General Assembly resolution 52/158, the fourth preambular paragraph.
Ver Texto (8)https://uncitral.un.org/en/mlcbi25.
Ver Texto (9)https://uncitral.un.org/en/texts/insolvency/modellaw/cross-border_insolvency/status.
Ver Texto (10)The idea of preparing an insolvency law convention was discussed in UNCITRAL in the past but did not lead to a concrete work by UNCITRAL (see e.g. Official Records of the General Assembly, Seventy-first Session, Supplement No. 17 (A/71/17), para. 247). It remains to be seen whether it would be revived in UNCITRAL and, if so, how and in which shape and form. Professor Ballesteros identifies in part three of this book the following international insolvency law issues as ripe for unification by way of a convention: (a) access to foreign courts by foreign insolvency representatives; (b) recognition of foreign insolvency proceedings; (c) cooperation, communication and coordination between insolvency representatives and courts; (d) international jurisdiction for the commencement of insolvency proceedings; and (e) rules on applicable law. At the conference dedicated to the 25th anniversary of MLCBI, it was suggested that UNCITRAL may wish in due time to start working on establishing an international insolvency court that would handle cross-border insolvency cases, in particular those involving digital assets in the light of their nature (see A/CN.9/1126, annex, para. 20).
Ver Texto (11)https://uncitral.un.org/en/case_law, where the UNCITRAL secretariat publishes, in the six official languages of the United Nations (Arabic, Chinese, English, French, Russian and Spanish), abstracts of judicial decisions (and, where applicable, arbitral awards) that interpret conventions and model laws emanating from the work of UNCITRAL. The full, original decisions are available, upon request. The database is freely available and easily accessible and searchable in the six official languages of the United Nations. Case law abstracts on the MLCBI may be found at http://www.uncitral.org/clout/search.jspx?f=en%23cloutDocument.textTypes.textType_s1%3aModel%5c+Law%5c+on%5c+Cross%5c-Border%5c+Insolvency%5c+%5c(1997%5c). The MLCBI-related case law collection is growing with additional abstracts added annually.
Ver Texto (12)Published in 2021 and expected to be regularly updated. Available in the six official languages of the United Nations on the website of UNCITRAL at https://uncitral.un.org/en/texts/insolvency.
Ver Texto (13)First published in 2011 and subsequently updated in 2013 and 2022. Available in the six official languages of the United Nations at https://uncitral.un.org/en/texts/insolvency/explanatorytexts/cross-border_insolvency/judicial_perspective.
Ver Texto (14)Available in the six official languages of the United Nations on the UNCITRAL website atttps://uncitral.un.org/en/texts/insolvency/explanatorytexts/practice_guide_cross-border_insolvency.
Ver Texto (15)Available with its Guide to Enactment in the six official languages of the United Nations on the UNCITRAL website athttps://uncitral.un.org/en/texts/insolvency/modellaw/mlij.
Ver Texto (16)Available with its Guide to Enactment in the six official languages of the United Nations on the UNCITRAL website athttps://uncitral.un.org/en/MLEGI.
Ver Texto (17)Available in the six UN languages on the UNCITRAL website athttps://uncitral.un.org/en/consolidated-text-uncitral-model-laws-cross-border-insolvency-recognition-and-enforcement.
Ver Texto (18)Available in the six official languages of the United Nations on the UNCITRAL website athttps://uncitral.un.org/en/texts/insolvency/legislativeguides/insolvency_law.
Ver Texto (19)As part five of the UNCITRAL Legislative Guide on Insolvency Law, the text is available at https://uncitral.un.org/en/texts/insolvency/legislativeguides/insolvency_law. As a supplement to UNCITRAL texts in the area of micro, small and medium enterprises (MSMEs), it has also been published as a stand-alone legislative guide and available in the six official languages of the United Nations at https://uncitral.un.org/en/ilmse.
Ver Texto (20)Available at https://uncitral.un.org/en/insolvency_table_of_concordance_mses.
Ver Texto (21)See on that, José Angelo Estrella Faria, “Future Directions of Legal Harmonisation and Law Reform: Stormy Seas or Prosperous Voyage?”
Ver Texto (22)A/CN.9/1126, annex.
Ver Texto (23)See e.g. proposed updates to the Judicial Perspective at A/CN.9/WG.V/WP.180 and the updated version of that publication at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/mlcbi_judicial_perspective_2021_advance_copy.pdf .
Ver Texto (24)See e.g. A/RES/77/100 - United Nations Convention on the International Effects of Judicial Sales of Ships; A/RES/73/198 - United Nations Convention on International Settlement Agreements Resulting from Mediation; and A/RES/69/116 - United Nations Convention on Transparency in Treaty-based Investor-State Arbitration.
Ver Texto (25)See e.g. General Assembly resolutions 52/158, the seventh preambular paragraph, and 77/99, paras. 9, 15 and 17 and the second and last preambular paragraphs.
Ver Texto (26)As of 9 October 2023, the UNCITRAL secretariat ascertained that legislation based on or influenced by MLCBI has been adopted in 59 States in a total of 62 jurisdictions.
Ver Texto (27)A list of States and jurisdictions whose legislation is based on or influenced by MLCBI is available at https://uncitral.un.org/en/texts/insolvency/modellaw/cross-border_insolvency/status. African States (Angola, Ghana and Rwanda) and Saudi Arabia are the most recent additions to that list.
Ver Texto (28)For example, Rubin & Anor v. Eurofinance SA, [2012] UKSC 46 (on appeal from [2010] EWCA Civ 895 and [2011] EWCA Civ 971); CLOUT case No. 1270.
Ver Texto (29)Article X of MLIJ, addressed to States that have enacted legislation based on MLCBI, clarifies that, notwithstanding any prior interpretation to the contrary, the relief available under article 21 of MLCBI includes recognition and enforcement of a judgement.
Ver Texto (30)Existing international conventions that deal with recognition and enforcement of foreign judgments exclude judgments relating to insolvency (see e.g. the Convention of 30 June 2005 on Choice of Court Agreements (article 2.2. (e)) and the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (article 2.1 (e)).
Ver Texto (31)See e.g. General Assembly resolution 77/99, the fifth preambular paragraph.
Ver Texto (32)For examples of revisions made to UNCITRAL earlier texts, see e.g. the 2011 UNCITRAL Model Law on Public Procurement that updated the 1994 UNCITRAL Model Law on Procurement of Goods, Construction and Services in the light of developments that took place in procurement practices after 1994 (the use of electronic procurement, framework agreements and electronic reverse auctions) and the need to strengthen anti-corruption safeguards in public procurement in compliance with the United Nations Convention against Corruption), as well as the UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006, where, among others, provisions as regards interim measures of protection were added.
Ver Texto
