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  5. UNCITRAL Model Law on Cross-Border Insolvency: The Judicial Perspective

UNCITRAL Model Law on Cross-Border Insolvency: The Judicial Perspective

Purpose

The Judicial Perspective is designed to assist judges with questions that may arise in the context of an application for recognition under the UNCITRAL Model Law on Cross-Border Insolvency. As such it is relevant not only to judges from States that have enacted legislation based on the Model Law, but to judges from any State likely to be concerned with cross-border insolvency cases. The text discusses the Model Law from a judge's perspective, identifying issues that may arise on an application for recognition or cooperation under the Model Law and discussing the approaches that courts have taken in countries that have enacted legislation based on the Model Law. The text responds to requests from participants at the biennial UNCITRAL/INSOL/World Bank multinational judicial colloquia for more information on the application and interpretation of the Model Law.

Relevance to international trade

Legislation based on the UNCITRAL Model Law has been enacted in many States. The number of applications for recognition and assistance made under that legislation is growing, as is the range of jurisdictions involved in those applications. Judges are increasingly being asked to decide issues concerning cross-border cases with which they may have little familiarity or experience. The text is designed to provide an introduction for judges to the use and application of the Model Law, promoting common understanding and uniform interpretation and enhancing predictability.

Key provisions

The text examines the provisions of the UNCITRAL Model Law, ordered to reflect the sequence in which applications for recognition and assistance under the Model Law would generally be considered by a receiving court. It offers general guidance, from a judge's perspective, on the issues relevant to deciding those applications, based on the intentions of those who crafted the Model Law and the experience of its use in practice, including in cases reported in the Case Law on UNCITRAL Texts (CLOUT) system. It does not purport to instruct judges on how to deal with such applications, nor does it suggest that a single approach is either possible or desirable.

The Judicial Perspective will be periodically updated to ensure the information it provides reflects the latest available jurisprudence.

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