I am pleased to be again attending a meeting of Working Group V – Insolvency of UNCITRAL, in New York from 13-17 April 2026 with my colleague, Dr Amanda Bull of QUT. We are attending on behalf of LAWASIA.
Among issues to be progressed is a draft law on applicable law in insolvency proceedings, and an Australian initiative to redraft the Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-Border Insolvency.
Australian initiative to redraft the Legislative Guide
In my comment of 17 December 2024 I reported on that Australian initiative to redraft the Legislative Guide as being, apparently, an alternative approach to revising the Model Law itself.
Australia’s suggested update of UNCITRAL’s Cross-Border Insolvency Guide – Murrays Legal
UNCITRAL held a Colloquium on possible updates to the Guide to Enactment on 11 and 12 December 2025.
In The UNCITRAL Model Law on cross-border insolvency: The aspiration of convergence at a time of global divergence | Australia | Global law firm | Norton Rose Fulbright my colleagues Scott Atkins and Rodney Bretag bring the progress of this initiative up to date, reporting on a successful debate about the issue at UNCITRAL Colloquium.
They write that while the Model Law has served purposes, yet it
“has faced several obstacles. These have included limited adoption in some regions, differences in the implementation of the Model Law by enacting states, and differences in the interpretation of the Model Law by courts across enacting states”.
Also, “the insolvency and economic landscape is now almost unrecognisable compared to what it once was” with technological and digital advances, AI, environmental, climate change etc, and geopolitical and trade tensions.
The authors claim that revising the Guide, last revised in 2014,
“has the potential to provide greater clarity and practical guidance and experiences which could function as a pathway to the further adoption, and consistent implementation and interpretation, of the Model Law, while also assisting legislators, regulators and the judiciary to understand how the Model Law’s recognition framework “fits” in a rapidly evolving economic and regulatory context”.
A draft model law on applicable law in insolvency proceedings
This New York session will also be considering a draft model law on applicable law in insolvency, the Working Group’s consensus being the lex fori concursus – the law of the State in which the insolvency proceedings are commenced – which except as provided otherwise
“shall govern all aspects of the commencement, conduct, administration and closure of insolvency proceedings and their effects …”.
This is as opposed to the “lex rei sitae” (the insolvency law of the State where the asset is situated at the date of the commencement of insolvency proceedings), or the “lex societatis” (the law of the State that governs the formation, operation and dissolution of business entities and their internal governance issues).
Other work of WGV is also to be debated.
UNCITRAL Vienna, 2016
Current issues in cross-border insolvency
Some current case law issues include
- the decision in Sian Participation Corp v Halimeda International [2024] UKPC 16 of the Privy Council, as to whether a court should stay a winding up proceeding in favour of an arbitration;
- the limited nature of the public interest exception under Art 6 of the Model Law in PricewaterhouseCoopers Inc in its Capacity as Foreign Representative of IE CA 3 Holdings Ltd v IE CA Holdings Ltd [2024] FCA 1208, in the context of holding public examinations in Australia; and
- the UK Supreme Court’s comment in Kireeva v Bedzhamov [2024] UKSC 39 as to the impact of “the immovables rule”, that the rights to and interests in land and other immovable property are governed by the law of the country in which the property is situated (the lex situs) and that jurisdiction decides any land title claims. In that case, a Russian trustee in bankruptcy had no interest in or right to the bankrupt’s immovable property in the UK.
The Supreme Court noted,
“with some justification, that the application of the immovables rule in the case of a foreign bankruptcy produces a surprising result in leaving the bankrupt’s immovable property in this country to be enjoyed by the bankrupt or to be taken in execution by individual creditors on a first come, first served basis, when in a bankruptcy under the laws of both this country and the foreign state (in this case, Russia), immovable property would form part of the bankrupt’s estate. That, however, is a policy reason to be considered in the context of any proposal for legislative change. Further, by reason of the CBIR, this result is avoided where the bankruptcy order is sought and made in the debtor’s centre of main interests. In the present case, it was open to the Respondent’s creditors to apply for a bankruptcy order in this country, where he had his centre of main interests and his domicile for bankruptcy purposes, rather than in Russia”.
UNCCA
We are grateful for the assistance of UNCCA – the UNCITRAL National Coordinating Committee for Australia – in facilitating our attendance. The chair of UNCCA is the Hon Justice Sarah Derrington AM; the chair of UNCCA’s Expert Advisory Committee for Working Group V is Scott Butler. Our report on the meeting will be issued through UNCCA.
