UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation (2009)
Date of adoption: 1 July 2009
Purpose
The Practice Guide on Cross-Border Insolvency Cooperation provides information for insolvency practitioners and judges on practical aspects of cooperation and communication in cross-border insolvency cases. It illustrates how the resolution of issues and conflicts that might arise in those cases could be facilitated by cross-border cooperation, in particular through the use of cross-border insolvency agreements, tailored to meet the specific needs of each case and the requirements of applicable law.
Relevance to international trade
As noted with respect to the UNCITRAL Model Law, the development of insolvency regimes to address cross-border cases has not kept pace with the need or demand for such regimes. Faced with the difficulties of dealing with cross-border issues on a daily basis, the insolvency profession has developed various tools, including the cross-border insolvency agreement, which address the procedural and substantive conflicts that may arise in cross-border cases involving potentially competing jurisdictions by focusing on cooperation between courts, the debtor and other stakeholders.
Key provisions
Chapter I discusses the increasing importance of coordination and cooperation in cross-border insolvency cases and introduces various international texts relating to cross-border insolvency that have been developed in recent years.
Chapter II expands upon article 27 of the UNCITRAL Model Law, discussing the various ways in which cooperation in cross-border cases might be achieved.
Chapter III examines in detail the use of cross-border insolvency agreements, a number of which have been entered into in cross-border insolvency cases over the past two decades, ranging from written agreements approved by courts to oral arrangements between parties to the proceedings. The analysis in this chapter is based on practical experience, in particular, in the cases summarised in annex I. "Sample clauses", based to varying degrees upon provisions found in these agreements, are included to illustrate how different issues have been or might be addressed in practice.