UNCITRAL’s Working Group V – Insolvency – met in December 2024 and among other issues had before it a proposal of October 2024 from the Australian delegation for updating the Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-Border Insolvency (GEI), and for holding a colloquium to assist that process.
According to UNCITRAL’s report of the December 2024 discussions, Australia’s support of its proposal highlighted insolvency law developments since 2013, when the GEI was prepared, including the adoption of the two new insolvency texts – the UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments (2018) and the UNCITRAL Model Law on Enterprise Group Insolvency (2019), as well as “landmark cases” related to the Model Law on Cross Border Insolvency.
A view was expressed that the work on the update of GEI might give some impetus to the enactment of the UNCITRAL cross-border insolvency framework by additional States.
In that respect, Australia has not adopted, nor perhaps even considered, the 2018 UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments and the 2019 UNCITRAL Model Law on Enterprise Group Insolvency.
Some delegations supported the proposal, including organizing a colloquium with a view to identifying required updates.
The Working Group received another proposal for a possible future work by UNCITRAL aimed at addressing climate change and environment protection issues arising in insolvency proceedings. While several delegations expressed support for the proposal, others urged a cautious approach, with suggestions that this could be taken up at a later stage or by other United Nations bodies under relevant international law frameworks. Digitalization and increased use of generative artificial intelligence and other recent developments, including in the maritime, outer space and environmental areas, were also mentioned.
A further suggestion was that any colloquium might consider a future work program of UNCITRAL in the area of insolvency law more broadly.
The Working Group recommended to UNCITRAL that it consider Australia’s and other proposals at its next session, in 2025, including organization of possible colloquium(s).
The main issues discussed by WGV in December 2024 involved consideration of two topics referred by UNCITRAL (asset tracing and recovery in insolvency proceedings (ATR), and applicable law in insolvency proceedings (APL)). These continue. The next WGV sixty-sixth sessions are set for 12–16 May 2025, and tentatively for 10–14 November 2025.
Comment
As I said earlier, Australia’s interest in insolvency law contrasts with the fact that it has not adopted the UNCITRAL Model Law on Enterprise Group Insolvency of 2019, nor the UNCITRAL Model Law on the Recognition and Enforcement of Insolvency Related Judgments of 2018. See Australia’s suggested update of UNCITRAL’s Cross-Border Insolvency Guide – Murrays Legal.
Nor has the Australian government responded to the law reform recommendations of the major PJC report on Corporate Insolvency of July 2023.
In any event other cross-border insolvency issues might claim greater attention, let alone Australia’s insolvency law itself.
The government’s domestic reasons for this decision would be useful.
