International cross-border insolvency – an Australian diary

Some selected diary items of interest to Australian readers, and others.   

September 2018

QUT Law – Dr Paul Omar – Regulation of Insolvency and Insolvency Practitioners in the Asia-Pacific Region

QUT is hosting an exclusive round table on insolvency systems and the regulation of insolvency practitioners from diverse economies in the Asia-Pacific Region, with Dr Paul Omar presenting on recent reforms in that region.

This seminar also presented research undertaken by QUT and others supported by funding from INSOL International.

Australia’s highly regulated regime, but with only limited involvement from the industry body ARITA, contrasts with the co-regulatory regime proposed in New Zealand under the auspices of RITANZ and CAANZ, modelled on that of the UK and its recognised professional bodies.

FAIR

The Forum of Asian Insolvency Reform is being held in Bangkok on 17-18 September 2018, held under the auspices of INSOL International and the World Bank.

October

INSOL Europe

Dr Omar is part of the secretariat of INSOL Europe. Its next annual conference is being held in Athens on October 7.  Its associated Academic Forum is scheduled to take place beforehand, on 3-4 October.

November 2018

LAWASIA’s Conference, Siem Reap, Cambodia, 2-5 November

The 31st LAWASIA Conference: New Era for South East Asia, is being held in Cambodia from 2-5 November 2018.

In relation to business restructuring, one session will look at cross-border issues arising out of the regulation of financially distressed companies in the Asia Pacific region. Recent developments in choice of law rules, jurisdiction, and enforcement of foreign judgments will be examined. The presenter from Australia is Justice Robert McDougall of the Supreme Court of New South Wales.

December 2018

UNCITRAL Working Group V (Insolvency Law) Vienna December 2018

The fifty-third session of UNCITRAL Working Group V was held in New York from 7-11 May 2018. The significant outcome of that session is the finalisation of a Model Law on the Recognition and Enforcement of Insolvency Related Judgments which was adopted by UNCITRAL at its meeting on 2 July 2018. The Model Law is due to be put before the General Assembly by the end of the 2018, following which it can be enacted by member states.

The model law is designed to address the outcomes of English court decisions concerning the recognition of restructuring proceedings or other judgments that bind third parties,[1] and which restricted the ability to recognise judgments that affected third parties or which sought to forgive debts that arose under contracts created under the laws of different jurisdictions.[2]

It is anticipated that major jurisdictions will adopt this Model Law it will be a decision for Australia whether it will do so.

The accompanying Guide to Enactment was returned to the secretariat for some minor amendments and it is anticipated that it will be finalised by the Working Group at its next meeting from 10-14 December 2018 in Vienna.

Other issues include the cross-border insolvency of enterprise groups and the insolvency of micro, small and medium-sized enterprises.

As to the former, an Australian commentator has recently said that the existing model law will stagnate without the inclusion of groups within its coverage; as to the latter, the Australian government is yet to consider options for MSME insolvencies in Australia, one being that of a government liquidator.

Australia’s UNCCA monitors and supports attendance at Working Group sessions of UNCITRAL.

February 2019

16th Annual Review of Insolvency Law Conference, Montréal

The 16th Annual Review of Insolvency Law Conference is to be held on 1 February 1 2019 at the Fairmont Queen Elizabeth in Montréal, with the opening reception at the hotel the evening prior. Topics for the conference include vesting orders, insurance resolution, cryptocurrency insolvency, personal data as an asset, municipal tax, consumer credit protection and other timely topics. The agenda is being finalised and a full agenda issued, soon.

My reports from the 2018 conference in Vancouver, in particular concerning similar issues in Canada and Australia in relation to insolvency and environmental law, are on this website.

March 2019

Ian Fletcher International Insolvency Law Moot 2019

The Ian Fletcher International Insolvency Law Moot is being hosted by Queensland University of Technology and Singapore Management University in Singapore on 29-31 March 2019.

My review of the 2018 Moot, held in Vancouver in February 2018, is in the last INSOL World journal of INSOL International.

Cross-border insolvency in Australia – generally

The view mentioned earlier that cross-border insolvency will stagnate without progress in UNCITRAL’s consideration of a model law to deal with enterprise groups may well be sound.

There are however at least two pending cross-border insolvency matters that raise novel and important issues – one being an application by a US bankruptcy trustee to bring voidable transaction proceedings in an Australian court under the Australian Corporations Act; the other concerning the conduct of Australian practitioners in foreign jurisdictions in which their Australian proceedings were recognised.

More on those soon.

Questions welcome.

 

 

[1] Rubin v Eurofinance SA [2013] 1 AC 236 and Singularis Holdings Ltd v PricewaterhouseCoopers [2015] AC 1675

[2] Antony Gibbs & Sons v La Société Industrielle et Commerciale des Métaux (1890) 25 QBD 399 and Re OJSC International Bank of Azerbaijan [2018] EWHC 59.

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