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2020-02-doc10 Applicable law in cross-border insolvency cases

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Applicable Law in Cross-Border Insolvency Proceedings is dominating the international insolvency world. In a few months two major events take place, one in Europe and one in the US.

The European Commission DG Justice and Consumers, the Croatian Presidency of the Council of the EU (seconded by the Ministry of Justice Croatia), with the Faculty of Law of the University of Zagreb and INSOL Europe organise a joint Conference on ‘Applicable Law in Cross-Border Insolvency Proceedings’. Date and venue: Friday 27-Saturday 28 March 2020, Zagreb, Croatia.
The basis adopted for the conference is the existing ‘Applicable law’ framework in the European Insolvency Regulation (Recast). The conference seeks to explore contemporary views and critical issues that a renovation of this framework will face, with a view to a possible updating of the existing system and the possible inclusion of other topics. Some 15 speakers are academics, judges or practitioners from some 12 jurisdictions and organisations, mainly specialists in private international law, more particularly.
For information/registration, go to https://www.pravo.unizg.hr/ALCBIP

The topic ‘Applicable law in insolvency’ is also trending on a global level. UNCITRAL, in cooperation with the Hague Conference on Private International Law, will organise an international Colloquium on Applicable Law in Insolvency Proceedings, to be held in New York on 15 May 2020. In 2019, UNCITRAL considered a proposal from the EU on applicable law in insolvency proceedings. The Colloquium to be held will discuss the feasability and possible content of work UNCITRAL may undertake in 2020. UNCITRAL agreed on the importance of the topic, which would complement the significant work already done by it in the area of restructuring and insolvency law, in particular cross-border matters. For further information, see https://uncitral.un.org/applicablelawcolloquium. The report of the Colloquium will be before UNCITRAL in New York, July 2020) and upon its issuance will be made available on the web page of the Commission.

May I suggest to anyone interested to take a peek at a report, known as American Law Institute (ALI)/International Insolvency Law Institute (III), Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases, issued in 2012? See https://www.iiiglobal.org/sites/default/files/alireportmarch_0.pdf. The Reporters of this close to 300 pages report were (the late) professor Ian Fletcher, University College London, and myself. The report covers mainly three areas: (i) the result of a global research survey that established the extent to which it was feasible to achieve a worldwide acceptance of the ALI NAFTA Principles 1995, either in their existing form or, if necessary, with modifications or variations, and (ii) a review of the appreciation of the ALI NAFTA Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases. Fletcher and I revised these in the light of subsequent 15+ years developments in relation to cross-border cooperation, leading to our Global Guidelines for Court-to-Court Communications in International Insolvency Cases. In addition to the ‘Global Principles’ and the ‘Global Guidelines’, the report contains a separate Annex which presents our personal statement setting out proposals for Global Rules on Conflict-of-Laws Matters in International Insolvency Cases. These proposals were not included in the Global Principles as such, but have been submitted to ALI and III as a useful starting point for further debate on a global level, bearing in mind the necessity to have these proposals tested against existing treaties or conventions and ALI’s other work products and ongoing work on Principles related to other topics with conflict-of-law consequences at that time (we finalised our text in December 2011). I am sure, eight years later, there will be other work products to test these Global Rules against. Fletcher and I envisaged that our Global Rules proposal could serve as a basis for international negotiation under the auspices of one or more appropriate organizations. The Global Rules contain in all 23 Rules and are accompanied by some 60 pages with comments and notes. At that time we expressed that to become formally applicable by national courts, it would be necessary for the Global Rules to become embodied in an international convention or model law to which a significant number of states might, in due course, become contracting or enacting parties. At the time of the report, in 2012, it may have been to early, but I think that the chances in 2020 are certainly better for the Global Rules to take into account when taking this subject further.