WORKING GROUP V: INSOLVENCY
The Mandate
Working Group V has debated and considered issues in relation to international and cross-border insolvency law since at least 1995. During this time, the Working Group has produced several core documents, including the following:
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Model Law: UNCITRAL Model Law on Cross-Border Insolvency (1997)
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Legislative Guide: UNCITRAL Legislative Guide on Insolvency Law (2004)
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Practice Guide: Practice Guide on Cross-Border Insolvency Cooperation (2009)
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Practice Guide: A Guide to Enactment and Interpretation of the 1997 CBI Model Law (2013)
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Model Law: UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments with Guide to Enactment (2018)
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Model Law: UNCITRAL Model Law on Enterprise Group Insolvency (2019)
Most recently, it produced the UNCITRAL Legislative Recommendations on Insolvency of Micro- and Small Enterprises (2021) being particularly relevant in the context of the impact of COVID-19 on small enterprises.
Aside from insolvency law, the mandate of Working Group V has previously also included:
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New International Economic Order (1981-1994)
Recent projects
The three most recent projects have been the:
UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments with Guide to Enactment (2018), dealing with the particular issues that arise when an insolvency related judgment is sought to be enforced in another jurisdiction;
UNCITRAL Model Law on Enterprise Group Insolvency (2019), which deals with the difficult issue of the insolvency of corporate groups across borders; and
UNCITRAL Legislative Recommendations on Insolvency of Micro- and Small Enterprises (2021), dealing with the need for insolvency regimes to deal with the particular issues of MSEs, in relation to both personal and corporate liabilities. At the session on Vienna in December 2021, it was decided that the MSE Insolvency text would be published as Part V of the UNCITRAL Legislative Guide on Insolvency Law and also as a standalone text with publication anticipated later in 2022.
UNCCA representatives on behalf of LAWASIA have attended all the working group sessions that led to these outcomes, either in New York or Vienna, and more recently by way of online attendance. Senior insolvency lawyers, counsel and academics have led the attendances often with students attending through the UNLAWS Program.
Australia
Australia adopted the Model Law on Cross-Border Insolvency by way of the Cross-Border Insolvency Act 2008 and around 50 countries have adopted it world-wide. There is now a substantial jurisprudence on cross-border insolvency both under the Model Law and under the letters of request regimes maintained in Australia under s 29 Bankruptcy Act and s 581 Corporations Act.
Australia is yet to consider the two more recent WGV model laws and guidance notes of UNCITRAL. UNCITRAL has issued these publications to assist member states:
The United Kingdom is consulting on whether it should adopt the the Model Law on Recognition and Enforcement of Insolvency-Related Judgments and the Model Law on Enterprise Group Insolvency: see Implementation of two UNCITRAL Model Laws on Insolvency - GOV.UK (www.gov.uk).
Australia’s membership of UNCITRAL continues into 2022 and following.
Civil Asset Tracing, and Applicable Law
Two further projects have been taken on by the Working Group.
These are:
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processes for tracing and recovering assets across borders; and
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the difficult private international law question of the applicable law in cross-border proceedings. This follows a Colloquium on Applicable Law in Insolvency Proceedings held in Vienna on 11 December 2020.
These were decided upon at the WGV session in December 2021 and were discussed at the WGV meeting held 18-22 April 2022 in New York. They were the subject of presentations at an UNCCA seminar on 27 May 2022 in Sydney to recognise the 25th anniversary of the Model Law on Cross-Border Insolvency, and a summary of the papers is linked here: UNCCA Report: May Seminar 2022.
The sixty-first session of the Working Group will be held at the Vienna International Centre in Vienna, Austria, from Monday, 12 December, to Friday, 16 December 2022. A commemoration of the 25th anniversary of the UNCITRAL Model Law on Cross-Border Insolvency will be held on 16 December.
UNCCA - Expert Advisory Committee
The activities of WGV are monitored by the WGV Expert Advisory Committee of UNCCA, comprising these experienced Australian lawyers and academics:
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Scott Butler - Chair
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Vicki Bell
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Dr Neil Hannan
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Stewart Maiden KC
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John Martin
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Adjunct Professor Rosalind Mason
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Michael Murray
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Lee Pascoe
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Dr Sagi Peari
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Tony Ryan
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Dr Robert Walters
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Assistant Professor Dr Casey Watters
The Committee Chair or other members of the committee can be contacted through UNCCA.
RESOURCES
UNCITRAL maintains its Case Law on UNCITRAL Texts (CLOUT), the national correspondent for Australia being Stewart Maiden QC. Case Law on UNCITRAL Texts (CLOUT) | United Nations Commission On International Trade Law
As referred to above, on 27 May 2022, UNCCA held a seminar in Sydney, and on-line, to recognise the 25th anniversary of the Model Law on Cross-Border Insolvency, of 1997. A summary of the papers presented is linked above.
In 2019, UNCCA held its annual UN Day Lectures on the topic "25 Years of Cross-Border Insolvency Law Reform". Both the Lectures and Commentary were presented by experts in the field of insolvency law.
Below you can find some of the materials which were presented at the event.
The Lectures
"The past, present and future of UNCITRAL Model Law on Cross Border Insolvency and Australia’s participation"
By Professor Christopher Symes, University of Adelaide
UNCITRAL Resources, CBI Instruments, and Theory
By Adjunct Professor Rosalind Mason, Queensland University of Technology (QUT)
25 Years of Cross-Border Insolvency Law Reform 1994-2019
By Adjunct Professor Michael Murray, QUT
Risk and Cost Reduction in Insolvency: UNCITRAL's Cross Border Framework
By Tim D. Castle, 6 St. James Chambers
Necessary Imperfections in Cross-Border Insolvency Law: Recent Case Law and Correction Attempts
By Stewart Maiden QC, Owen Dixon Chambers West
The Commentary
The Model Law: Salient Features in Practice
By Scott Butler, McCullough Robertson
Insolvency in Tasmania: Relevance for Industry and Global Insolvencies
By Paul Cook, Former President of ARITA
Balancing the CBI Framework Domestically: Maritime Stays and Claims
By Dr. Neil Hannan, Thomson Geer
All documents open as PDF files in a new tab
Titles have been assigned to those resources which did not already have one.
Further Information
As with other Working Groups, WG V maintains an online record of its latest work and agendas for forthcoming meetings and colloquia. The relevant information is available at Working Group V: Insolvency Law | United Nations Commission On International Trade Law.
This section of UNCCA’s website will be updated as necessary in light of further progress or announcements about Working Group V.
November 2022.