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2017-11-doc7 Some remarks on the Model Law

The UNCITRAL Model Law on Cross-Border Insolvency, celebrating its 20th year of existence, is world-wide regarded as a valuable tool in organising a country’s provisions of international insolvency law. The Model Law deals in its core with recognition of foreign insolvency proceedings, communication and cooperation of proceedings (by insolvency practitioners and courts) concerning the same debtor and the rights of foreign creditors. Presently, the Model Law has been used as a guidance for enacting national international insolvency law provisions in over 40 countries.

Alphabetically these countries are: Australia (2008), British Virgin Islands (2003), Canada (2009), Chile (2014), Colombia (2006), Eritrea (1998), Great Britain (England, Wales and Scotland, 2006, Northern Ireland, 2007), Greece (2010), Japan (2000), Mauritius (2009), Mexico (2000), Montenegro (2002), New Zealand (2006), The Philippines (2010), Poland (2003), Republic of Korea (2006), Romania (2003), Serbia (2004), Slovenia (2008), South Africa (2000), United States (2005) and 17 members of OHADA, the mid-African Organisation for the Harmonisation of Business Law in Africa.

In this fourth edition of his book Look Chan Ho (ed.), Cross-Border Insolvency. A Commentary on the UNCITRAL Model Law, Global Business Publishing, 4th ed., Volume I and Volume II, 2017, several country overviews have been added, more specifically Chile, The Philippines and Singapore. Extensively on the Model Law, see my book International Insolvency Law Part I. Global Perspectives on Cross-Border Insolvency Law (Wessels Insolvency Law Volume X), Deventer: Kluwer, 4th ed., 2015.

Most striking in the fourth edition is the division of the theme into two Volumes. The second volume contains the two different texts with which the Secretariat of UNCITRAL provides guidance for countries and courts while considering the enactment of the Model Law or explain a national provision which is based on the Model Law. Originally the text of this guidance is contained in the Guide to Enactment of the UNCITRAL Model Law on Cross-border Insolvency, which was published side by side with the Model Law itself, in 1997. It served its principle aim to promote uniform interpretation and application of the Model Law. In 2010, the USA proposed to update the Guide, with the aim to provide additional guidance on several issues raised by judicial decisions across different countries applying their version of the Model Law. The work was completed in 2013 and published as Guide to Enactment and Interpretation of the Model Law.

The topics that amended were amongst others the definitions of ‘insolvency’ and ‘collective insolvency proceedings’, the factors to consider determining the debtor’s centre of main interest (COMI) and the relevant time for determining COMI and the public policy exception of Article 6 Model Law. These changes have been called clarifications. It was however, several years ago, very surprising to find out that the original Guide to Enactment (1997) had been taken away from the UNCITRAL website and that the renewed Guide to Enactment and Interpretation fully has replaced the original one, without for instance track changes showing the revisions. Also, the paragraph numbers have been changed. The website however contains a ‘Table of concordance of paragraph numbers between the 1997 and 2013 versions of the Guide’.

In several publications, the editor of the 2 volumes at hand, Look Chan Ho, has – I have supported his view in my book mentioned above – been very critical on both the form the revised Guide has taken and the content of these revisions. Some countries – and several chapters in the fourth edition of the book do record this, including Singapore – have used the original Guide. Only having available the new Guide for Enactment and Interpretation deprives practice of the necessary original sources, let alone the fact that the renewed Guide seems to have drifted away from an objective, informative guiding statement for legislators to a text that includes suggested approaches for interpretations by courts. By publishing both documents the editor and the publisher are to be complemented. They remove the stain on the name of UNCITRAL.

For the new chapters in the book, the one on Chile is rather short. It may be the case indeed that Chilean Insolvency Law has incorporated the Model Law in full, with some minor changes, as the authors suggest. However, the changes are quite substantial, for instance the national provision for the public policy exception (refusing to take action when the action would be ‘manifestly contrary to public policy of this State’) has not included the word ‘manifestly’, evidently giving much more room for Chilean courts to halt foreign insolvency effects. The chapter on the Philippines is, to the contrary, quite large (some 50 pages), with a detailed article-by-article treatment, interwoven with recently (in 2012 and 2015) adopted national laws and practices on a broad set of proceedings available for companies and natural persons. In the chapter on Singapore it is explained that the Model Law forms a part of a recent larger development of modernising substantial law to strengthen Singapore as Centre for Debt Restructuring. The English example is followed where courts do not have an obligation to cooperate with foreign courts or IPs, rather they ‘may’.

The book provides the most detailed country-by-country analysis of the Model Law of its kind. It is, however, disappointing to note that the editor has not provided for a systematic synthesis of the differences of national enactments of the core topics of the Model Law. He would certainly be equipped to do so and such a comparative overview would have been an excellent addition to the book. It would also show gaps or inadequacies in national laws. Taken from here UNCITRAL could study these and could discuss the development of a Model Law II (or: Model Law 2.0) to further contribute to the development of harmonising certain ‘international’ aspects of national insolvency laws. Such a Model Law 2.0 could also reflect that the text itself goes back 20+ years. One may wonder whether more recently developed concepts and theme would not be ready for a promotion to the league of the Model Law.

Examples could be: rules on applicable law (the ones contained in the Legislative Guide are not nuanced enough), data protection, group insolvency provisions, registration of insolvency decisions, the main insolvency practitioner’s power to give a unilateral undertaking (in order to prevent opening of proceedings in another state), professional and ethical rules for insolvency practitioners or rules for recognition of for instance decisions on director’s disqualification.

Aside from this, readers of the book will be lawyers in private practice or in-house, insolvency practitioners, government authorities, academics and judges. They are provided with an informed and comprehensive exposition of the relevant topics, with references to case law and literature, including an extensive index and tables of cases and legislation.

Look Chan Ho (ed.), Cross-Border Insolvency. A Commentary on the UNCITRAL Model Law, Global Business Publishing, 4th ed., Volume I and Volume II, 2017, 968 pp. ISBN 9781911078210.

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Note: this book I received free of charge from the publisher with the request to announce it or to review it on my blog at