Federal Court of Australia - Corporations Law International Seminar

Seminar held "live" in the Sydney Registry of the Court and relayed simultaneously to UNCITRAL Vienna, all other Registries of the Court and the High Court of New Zealand (Auckland) by videoconference

I would like to open this National Seminar on Cross-Border Insolvency by welcoming you all.

It is a timely seminar, of course, since the Act came into force only a few months ago. Sadly, it is timely for obvious commercial reasons as well.

Cross-Border Insolvency is a particular interest to the Federal Court as a national commercial court and also, of course, as a court of bankruptcy. For we are concerned here with both corporate and personal insolvency – a matter that is sometimes overlooked.

This is our second National Seminar for 2008. The first was in April concerning aspects of corporations law and, as on the earlier occasion, we have a very large audience. On my estimation, some 450 people are present in the Federal Court’s courthouses in every State and mainland Territory. That is a great tribute to the profession and its interest in gaining expertise in this new area.

I am delighted to announce, also, that we are joined this evening by members of the High Court of New Zealand in Auckland. I extend a very special welcome to them. This is indeed an international seminar on Cross-Border Insolvency.

The seminar is international in another sense, too, because Ms Jenny Clift of the International Trade Law Division of the UNCITRAL Secretariat will be joining us from Vienna.

The speakers will be introduced by Justice Kevin Lindgren who you see there centre screen. His Honour is one of our most senior judges in Sydney. He will explain the procedure.

We do not expect any technical problems but if there are we have back-ups in place. If we encounter problems we will deal with them – I trust in good humour.

I therefore now extend to you all a very warm welcome, nationally and internationally. I hand over to Justice Lindgren in Sydney who will introduce the speakers and explain how we intend to proceed.

LINDGREN J: Thank you, Chief Justice. The Cross‑Border Insolvency Act 2008 was passed by the Commonwealth Parliament earlier this year as I think everybody attending knows, and it commenced on 1 July 2008. The Act gives effect to the Model Law on Cross‑Border Insolvency of the United Nations Commission on International Trade Law, commonly referred to as UNCITRAL. Harmonised rules of court have been agreed to, and in many cases already made, by the Federal Court and the State and Territory Supreme Courts, providing for proceedings under the Act, or if you like, under the Model Law, which the Act makes part of Australian law. Those rules are in the nature of amendments to the harmonised rules of court which provide generally for proceedings under the Corporations Act, the ASIC Act and now, as well, the Cross‑Border Insolvency Act.

So as the Chief Justice said, it is opportune to consider how the cross‑border insolvency régime can be expected to work. Again, as the Chief Justice said, the Model Law applies to the bankruptcy of individuals as well as to corporate insolvency, although probably the greater scope for the operation of the Act will be in the corporate insolvency area. I should just perhaps inform the audience, however, that there will be bankruptcy rules made modelled on the harmonised corporations rules dealing with cross‑border insolvency. A draft of those rules has been prepared.

Let me now come to this afternoon’s programme. We will first of all hear from Ms Jenny Clift in Vienna and in a moment I will say something about her. She will speak for about 20 minutes. Following that, we will hear from an illustrious panel of three speakers who will deal with the four hypothetical case studies which have been distributed. I hope that you all have a copy of those case studies with you. They were prepared by Ian Walker, one of the panellists and Michael Murray of the Insolvency Practitioners Association.

The case studies will occupy 12 minutes each and then we will have a question time. The question time will operate in this way. If you have a question or a comment would you tell the supervising Judge or Registrar at your particular venue. That person will then ring through to someone here and say there will be a question from Perth or a couple of questions from Canberra or wherever and I will be informed. This will enable us to cross to that venue, rather than going around the country to all venues including those from which there may be no questions. If you have a question or comment, please speak into the microphone (the video is voice activated).

The last thing I will say before I introduce Jenny Clift is that the little planning committee which helped me organise this afternoon is Justice Logan of the Queensland District Registry of the Court, Mr Michael Murray of the Insolvency Practitioners Association, Mr Phillip Kellow the Deputy Registrar of the Federal Court, and Mr Ian Walker of Minter Ellison in Melbourne.

We will cross in a moment to Vienna. We are really delighted to have Jenny Clift as the lead speaker this afternoon.

Her position is that of Senior Legal Officer, Office of Legal Affairs, United Nations. She is Head of Technical Assistance and Cooperation within the International Trade Law Division, United Nations Office of Legal Affairs which functions as the secretariat for the United Nations Commission on International Trade Law, UNCITRAL. Since December 2000, Ms Clift has been secretary of the Insolvency Working Group which, in 2004, completed the UNCITRAL legislative guide on insolvency law, and in 2006 she commenced work on the treatment of enterprise groups in insolvency.

A further project of hers is the compilation of practice with respect to coordination and cooperation in cross‑border insolvency cases, with particular emphasis on the negotiation and use of cross‑border agreements. In March 2008, Ms Clift was appointed by the Secretary General of the United Nations to the Internal Justice Council, a five member body established by the General Assembly to help build a new system for the internal administration of justice in the United Nations. Jenny Clift holds the degrees of BA, LLB (Hons) and LLM from Australia. I should have mentioned that Ms Clift is an Australian and has studied Mandarin in Australia and the People’s Republic of China, having lived in Beijing between 1987 and 1990. So at this point we will switch to Vienna and we will hear from our speaker, Jenny Clift.

MS J. CLIFT: Thank you, Justice Lindgren. Good afternoon everybody. I’m tempted to say good morning but I’ll say good afternoon.

The Model Law was negotiated between 1995 and 1997 by an intergovernmental working group comprising representatives of 72 States, seven inter-governmental organizations (IGOs) and ten non-governmental organizations (NGOs). This diversity of representation may be seen as key to the wide acceptance and adoption of the text.

The Model Law provides a legislative framework for cross-border insolvency, focussing upon what is required to facilitate the administration of cross-border insolvency cases and provide an interface between jurisdictions; it does not address issues of substantive law (which are addressed in the UNCITRAL Legislative Guide on Insolvency Law).

The objectives of the Model Law are clearly set forth in Article 1; where this Article has been included in enacting legislation it may assist in the interpretation of the text. That interpretation is also aided by Article 8, which encourages States to have regard to the international origin of the text and the need to promote uniform interpretation. In practice, this may mean considering the decisions of courts of other States when determining how certain issues should be resolved. One example relates to the interpretation of a debtor’s centre of main interests (COMI). Dissemination of information on those decisions is facilitated by UNCITRAL’s system of Case Law on UNCITRAL texts (CLOUT), which contains abstracts of cases decided under the legislation enacting the Model Law. Several sets of abstracts on the Model Law have so far been published (available at http://www.uncitral.org).

The framework provided is unilateral – the Model Law relies for its effect on enactment by individual States. Such enactment generally signals that a State will accept applications for recognition from all other States, irrespective of whether those other States have adopted it. The only exception is where it has been enacted on the basis of reciprocity and provides, for example, that applications for recognition will only be accepted from other enacting States.

As at the end of November 2008, legislation based on the Model Law has been enacted by:

Australia (2008); British Virgin Islands; overseas territory of the United Kingdom of Great Britain and Northern Ireland (2005); Colombia (2006); Eritrea (1998); Great Britain (2006); Japan (2000); Mexico (2000); Montenegro (2002); New Zealand (2006); Poland (2003); Republic of Korea (2006); Romania (2003); Serbia (2004); Slovenia (2008); South Africa (2000); and the United States of America (2005).

Spain has provisions that are modelled to some extent on the Model Law (the procedure for recognition relies upon exequatur).

Under the Model Law scheme, proceedings that do not meet those criteria would not qualify for recognition.

Exclusions are contemplated by the Model Law. Banking and insurance intuitions are a common example; exclusions for financial and investment institutions, clearing houses and commodity brokers have also been introduced in some enacting legislation.

The text is organized around four key elements, identified through a series of studies and consultations conducted in the early 1990s as being the areas upon which international agreement might be possible:

Foreign creditors have the same right as local creditors to commence proceedings and participate in proceedings.

A foreign representative can apply for recognition of a foreign proceeding. The Model Law establishes simplified procedures that are intended to avoid time-consuming legalization or other processes and provide certainty with respect to the decision to recognize. Where the definitional requirements of Article 2 are met with respect to the foreign proceeding and certain evidential requirements relating to the appointment of the foreign representative and commencement of the foreign proceedings are met, the court should recognize the foreign proceedings.

The only proviso to recognition is found in Article 6, which allows recognition to be refused where it would be “manifestly contrary to the public policy” of the recognizing State. No definition of what constitutes public policy is attempted as notions vary from State to State. However, the intention is that it be interpreted restrictively and that Article 6 be used only in exceptional circumstances. Several US cases note the need for limited use of this Article.

It should be noted that proceedings commenced on a different basis e.g. presence of assets, do not qualify for recognition under the Model Law scheme. Much interesting discussion of this point has been provoked by Lifland J’s decision (and its affirmation on appeal ) in the Bear Stearns case in the United States.

The Model Law principle is that the relief considered necessary for the orderly and fair conduct of a cross-border insolvency should be available to assist foreign proceedings, whether on an interim basis or as a result of recognition. The Model Law provides that:

The Model Law adopts the approach of specifying the types of relief that should be automatically available as a minimum. That approach is a compromise between importing the relief available to the foreign proceedings under the law of the foreign State and applying the relief that would be available under the law of the recognizing State.

However, the Model Law also provides that with respect to the relief under (b), the scope of the effects of commencement depends upon exceptions/limits existing in the laws of the recognizing State with respect to the stay or suspension, for example, limitations that might apply to the enforcement of secured claims.

With respect to the relief under (a) and (c), the court can impose conditions and modify or terminate the relief to protect the interests of creditors and other interested persons affected by the relief ordered (art. 22).

The Model Law expressly empowers courts to cooperate in the areas governed by the Model Law and to communicate directly with foreign counterparts, not just at or from the time of recognition, but also earlier. That provision is important in countries where cooperation or coordination would not be possible without specific statutory authorisation.

Cooperation is authorized between courts, between courts and foreign representatives and between foreign representatives.

It is understood that appropriate procedures and safeguards for any communication undertaken would be provided by local laws and procedures.

Recognizing that the idea of cooperation might be unfamiliar to many judges and insolvency representatives, Article 27 sets out some of the possible means of cooperation. That Article is the basis of further work UNCITRAL is currently undertaking to compile, in the draft UNCITRAL Notes on cooperation, communication and coordination in cross-border insolvency proceedings, based on practice and experience with respect to the use and negotiation of cross-border agreements.

The Model Law also contains several provisions addressing coordination of concurrent proceedings, which aim to foster decisions that would best achieve the objectives of both proceedings. The recognition of foreign main proceedings does not prevent commencement of local proceedings (Article 28), nor does the commencement of local proceedings terminate recognition already accorded to foreign proceedings, nor does it prevent recognition of foreign proceedings.

Article 29 addresses adjustment of the relief available where there are concurrent proceedings. For example, where local proceedings have already commenced at the time the application for recognition is made, relief granted to the foreign proceeding must be consistent with the local proceeding. If the foreign proceeding is recognized as a main proceeding, for example, the automatic relief available on recognition under Article 20 does not apply.

As a model law, the text is flexible and can be amended by enacting States. However, in recommending the text to States, the United Nations General Assembly suggests it be given favourable consideration, “bearing in mind the need for an internationally harmonized [emphasis added] legislation governing instances of cross-border insolvency”. Clearly, the more changes made to the text, the less the harmonizing effect of the resulting legislation.

Nevertheless, while many States follow the text of the Model Law quite closely in enacting legislation, a number of different changes have been made. The enacting legislation therefore needs to be carefully examined; it should not be assumed that it corresponds exactly to the terms of the Model Law.

LINDGREN J: Thank you very much. We will now proceed to the panel section of the seminar and I’ll introduce the three panellists who will address the Case Studies which have been distributed. Each Case Study will be addressed principally by one panellist who will be supported briefly by a second panellist.

Tony McGrath is a partner and chairman of leading restructuring firm, McGrathNicol, a well known name in this insolvency area.

Tony has 25 years’ experience specialising in corporate recovery and during that time he has led numerous major assignments including liquidation of the HIH group of companies, the voluntary administration of the Henry Walker Eltin group and the liquidation of Pan Pharmaceuticals. Tony has acted for a range of clients including local and international banks, regulators and corporates. Those of us who read the reports of corporations cases, see the name McGrath frequently as a litigant. That is no reflection on Tony’s propensity to litigate, but is an indication of the size of his practice.

The second speaker I will introduce is Ian Walker who is on my right. In fact, the first case exercise will be addressed by Tony McGrath with Ian Walker supporting him. Ian is a partner in the insolvency and reconstruction and commercial disputes group at the Melbourne office of Minter Ellison. Ian Walker has more than 20 years’ experience and comments regularly on insolvency law reform issues. He is a member of the Law Council of Australia’s Insolvency and Reconstruction Subcommittee and one of the co-vice chairs of the Insolvency Legislation and Legislative Reform and Harmonisation subcommittee of the Section on Insolvency Reconstruction and Creditors’ Rights of the International Bar Association.

Ian Walker’s expertise is recognised by publications such as APL 500 2009 and Chambers Global 2008 where he is named as a leading individual for restructuring and insolvency. Ian was also named in the Best Lawyer section published in the Australian Financial Review in March 2008. He wrote the Australian chapter in Expedited Debt Restructuring and International Comparative Analysis published in 2007 by Kluwer Law International.

Finally, I turn to Professor Ros Mason. Professor Mason is Professor of Law and Head of the School of Law at the Queensland University of Technology. Professor Mason has taught undergraduate and postgraduate insolvency courses through flexible delivery mode to accountants, lawyers, bankers and others from around Australia and has presented at national and international conferences as well as published in her areas of major research interest, cross‑border insolvency and consumer bankruptcy.

Ros Mason has close links with members of both the legal and accounting professions engaged in insolvency practice. In 2006 she was appointed a member of the Insolvency Law Advisory Group established by Commonwealth Treasury to advise on corporate insolvency law reform. Ros is a member of INSOL International’s academic steering committee at the 2008 faculty for INSOL’s global insolvency practice course. She is on the editorial board of the International Insolvency Review and the Insolvency Law Journal.

As a Professor, Ros Mason contributes to academic leadership not only within the law discipline, but also more broadly within the Faculty and the University. She is the incoming chair of the Australasian Law Teachers’ Association. As Head of the School of Law at Queensland University of Technology, she is responsible for leading the community of academics and professional staff who constitute the second largest such school in Australia.

Now we will go to the first of our Case Studies and I will ask Tony McGrath to begin, followed by Ian Walker.

MR T. McGRATH: Thank you very much, Judge, and thank you for having me here today. I must say with some of the larger matters that we have run over the last ten or so years, there have been numerous cross‑border issues and so I think from our point of view we certainly welcome some of the key features of the Model Law that are now available and I think where we’re heading, obviously, in the economy there’ll be further evolution of these issues heard in these courts and other courts over the coming period.

As we have got Case Study 1 to look at, I am just going to run through quickly an outline of the case study and then come to each of the questions I’ve been asked to comment on.

Mr Black is the Liquidator of an Australian company. The company is a subsidiary of a US listed entity. Black seeks to examine the former directors of the Australian company in their countries of residence. The former directors reside in:

Black’s examination seeks to gain evidence surrounding the withdrawal of a letter of comfort that had been issued by the US parent and relied upon by all of the directors of the Australian company to allow the company to continue to trade. Black has approached the court for assistance in pursuing the examination of the former directors.

I turn now to Question A:
Does the UNCITRAL Model Law on Cross-Border Insolvency as enacted by the Cross-Border Insolvency Act 2008 (Cth) have any scope for operation? Even if it does, are there alternative avenues that might be pursued?

The only jurisdiction where the Model Law on cross-border insolvency would have any scope is in the United States. Malaysia, Canada and France have not adopted the Model Law.

Accordingly the Australian Liquidator Mr Black could use the Model Laws to approach the US courts directly. He can obtain recognition by the US court of the Australian winding up proceeding as either:

The US court would have immediate jurisdiction under the Model Law to make orders for the examinations.

In each of the other three jurisdictions, it would be necessary to rely upon the letter of request process under s 581(4) of the Corporations Act.

Equally, Black could use the letter of request process within the US jurisdiction.

The letter of request process under s 581(4) of the Corporations Act has been extensively used by Australian liquidators seeking orders such as this in foreign jurisdictions. Section 581(4) provides that a court may request a foreign court to act in aid and be auxiliary to it in an external administration matter.

Question B:
What are the comparative advantages and disadvantages of the letter of request procedure and the procedures available under the Model Law?

The key differences between the letter of request procedure and the Model Law process have to do with timing and the extent of the process.

I will now discuss Question C:
Is the fact that some of the countries are “prescribed countries” for the purposes of s 581(2)(a)(iii) of any relevance?

Before the Cross-Border Insolvency Act commenced, being a prescribed country was relevant when a request was made by the foreign court to the Australian court. The Australian court had to assist a prescribed country but had a discretion as to whether to assist a non-prescribed country: see s 581(2). Section 22 of the Cross-Border Insolvency Act now in effect overrides s 581(2) and an Australian court now must assist the courts of all countries. Hence, whether a country is prescribed or not is of no relevance.

Question D asks:
What considerations might be relevant to the success of any application either for a letter of request or under the Model Law that might be made to the court?

For an application for a letter of request it is necessary to meet the legal test provided in s 581(4), ie:

Under the Model Law, Mr Black will need to show that the Australian winding up proceeding is the “foreign main proceeding”. The US court can then make orders for the obtaining of information concerning “assets, affairs, rights, obligations or liabilities”. This can normally be done by showing that the place where the company is in liquidation (here, Australia) is “the centre of main interest”. These elements have not yet been tested before the Australian courts and there is an additional public policy exemption which may prove problematic.

Question E:
What difference if any does it make whether the country where a former director resides has adopted the Model Law?

The Model Law can only be applied by the country which has adopted it. If a foreign country has not adopted the Model Law the application must be made under the existing law of that foreign country.

LINDGREN J: Thanks very much, Tony. Ian, would you care to add some comments to Tony’s comment on Case Study 1?

MR I. WALKER: Thanks Tony. Thanks Judge. The relevant provision of the Model Law that we are considering here is Article 21(1)(d) which deals with some of the relief, or particular type of relief that can be granted if recognition is granted to a foreign proceeding whether it’s a foreign main proceeding or a foreign non‑main proceeding. The relief that may be granted by the courts, and this is a matter for the court’s discretion, may include for the examination of witnesses, the taking of evidence, or the delivery of information concerning the debtor’s assets, affairs, rights, obligations or liabilities.

So what we’ve seen in case study number 1 is an Australian liquidator moving to the US and other jurisdictions to get information. One of the issues I have is what type of information is the liquidator seeking and how is that information going to be used. We have seen that the letter of request process is a two stage process where examination orders are made and then that’s followed by a letter of request. The process under the Model Law will remove that first step, in effect, and will move straight to the second stage where the foreign court is asked to make orders for the examination of the witnesses.

Now, what we, in Australia, don’t have a lot of experience in, is actually asking foreign courts for relief in this area. It’s likely that local counsel will be required to give advice on the use of the rule and also the procedures to be adopted and there is then a flow back effect, if you like, when the evidence that’s gathered or the information that’s gathered is brought back to Australia and used by the liquidator, and how that might be used and for what purpose. It’s not quite clear yet how and under what rules the foreign evidence, calling it that, when gathered and brought back to Australia, can be used.

If it’s just information for the purposes of obtaining details about assets that the liquidator can then use and go on and chase assets with, well, that’s one thing, but if it’s meant to be evidence that’s admissible in an Australian proceeding in respect of a particular aspect of the liquidation, then that might be quite another thing entirely. I think we are still to see how that would work in practice.

LINDGREN J: Thank you very much. This brings us, of course, to Case Study 2 and Professor Ros Mason will address that case study first.

PROF R. MASON: Thank you judge. Likewise I will just summarise very briefly or outline very briefly the key issues in the facts.

Case Study 2 concerns a Japanese representative appointed in a Japanese insolvency proceeding over a Japanese company. The Japanese company has an asset in Australia subject to local enforcement. It also has shares in a wholly owned local subsidiary. This Australian company appears to be insolvent and its local creditors include employees.

Question A asks “Does the UNCITRAL Model Law as enacted by the Cross-Border Insolvency Act 2008 (Cth) have any scope of operation” in these circumstances?

Also, the Model Law has a preamble, which may be useful for interpreting its scope, as it outlines the purpose of the Model Law and the objectives it promotes: such as “cooperation between courts in cross-border insolvency cases”; “greater legal certainty for trade and investment”, and “fair and efficient administration of cross-border insolvencies”.

The Japanese company is the “debtor”. More information on the foreign law and facts is probably required to answer the following elements necessary for recognition under the Model Law:

The Japanese company carries on business in Australia to such an extent that it is likely to have an “establishment” locally. Also, the Japanese company’s shares in the Australian subsidiary are an asset of the debtor and as such the Australian subsidiary would be of interest to the “foreign representative”.

If the Japanese debtor becomes subject to concurrent local proceedings, that could bring the Model Law into play as well.

Questions A also asks “Are there alternative avenues that might be pursued?”
Depending upon the possibility of initiating such a proceeding in Japan, the Japanese representative may seek to have the Japanese court request the aid of the Australian court under s 581(3). This highlights the difference between the section 581 proceeding and the Model Law. Under the Model Law, the foreign representative could come directly to the Australian court.

There has also been some comment in the context of cross-border insolvency, in particular by Lord Hoffmann in Re HIH Casualty and General Insurance Ltd; McGrath v Riddell [2008] UKHL 21, on cooperation pursuant to the inherent jurisdiction of a superior court and a long tradition within the English common law system of cooperation between courts.

Question B asks “What course of action would you advise Mr Mitsubishi to pursue in Australia, and by what process?”

Mr Mitsubishi would like to obtain recognition of the Japanese proceedings in Australia as a “foreign main proceeding”. He could apply for recognition in Australia under Article 15 of the Model Law and, as I am assuming it would be in the Federal Court, the Federal Court (Corporations) Rules, rule 15A, would also apply.

Section 13 of the Cross-Border Insolvency Act contains one of the few provisions through which Australia has added to the Model Law. Under the Model Law Article 15(3), the foreign representative must disclose to the court any foreign proceedings. Under section 13, the foreign representative would also need to disclose any known proceedings that are occurring locally and these are defined more broadly than the local insolvency proceedings encompassed by the Model Law. For example, section 13 refers also to receiverships and controllerships. This approach is to assist the Australian court in determining the relief to grant in favour of the foreign proceeding, especially where co-ordination of multiple concurrent proceedings is required. While the proceedings in respect of the ship may not be covered by section 13, it would be something which I would expect the foreign representative would bring to the attention of the court.

When filing the application for recognition, Mr Mitsubishi may wish to seek interim relief under Article 19 in order to protect the debtor’s assets between the time of filing the application and the decision on recognition.

If the Australian court recognises the Japanese proceedings as the foreign main proceedings (based on Japan being the debtor’s centre of main interests), this brings into play an automatic stay of execution and a suspension of rights to dispose of assets under Article 20(1)(b) and (c). Article 20(2) refers to the scope of the Article 20(1) stay being subject to local Australian insolvency law. It is an important aspect of the Model Law that it adopts a procedural approach to assisting with cross-border insolvencies and does not seek to import the foreign insolvency laws. I would think more information is needed on the Japanese proceedings to assess what would be the equivalent Australian proceedings, so as to understand the scope of the stay.

In order to protect the debtor’s assets, Mr Mitsubishi as the foreign representative may seek additional relief under Article 21 such as the examination of witnesses, the taking of evidence, or the delivery of information. Mr Mitsubishi may also wish the Court to entrust the administration or realisation of the debtor’s Australian assets to himself or another person designated by the Court. Under r 15A(5) of the Federal Court (Corporations) Rules, it is likely that the Court would designate that person to be an Australian Official Liquidator, who must file a Consent to Act.

Mr Mitsubishi should apply under Rule 15A.3 for recognition of the Japanese proceedings against the Japanese company. Mr Mitsubishi would be named as the plaintiff and Shinoku Shipping Ltd as the defendant. He would file a Form 2 originating process; Article 15 statements and verifying Affidavits; a section 13 statement and verifying Affidavits. He must also file an interlocutory process seeking directions as to service.

If he decides to seek interim relief, then under Rule 15A.4, Mr Mitsubishi should file a Form 3 interlocutory process; and if he is seeking an order entrusting the debtor’s Australian assets to a person designated by court (other than Mr Mitsubishi), then he would need an Official Liquidator to file a Consent to Act (form 19) with an Australian address for service (rule 15A.5).

Unless the Court orders otherwise, on service, Mr Mitsubishi must under Rule 15A.6 send a Form 20 notice to all known creditors of the Japanese company and publish a notice in accordance with Rule 2.11 (as well as, if the Court so directs, publish a notice in a daily newspaper circulating generally in any State or Territory not described in rule 2.11).

Question C is as follows:
A creditor of the Australian and Japanese entities becomes aware of the application that you have recommended and which is in fact made, and seeks to oppose it, as do the employees of the Australian company. What issues would an Australian Court be likely to take into account when faced with such an opposed application?

The first point is one of jurisdiction. The Federal Court and the State and Territory Supreme Courts are the competent courts under Article 4 to receive an application for recognition of the proceedings against the Japanese company.

Second, the court is likely to look to whether Mr Mitsubishi has satisfied the requirements of Articles 15 and 17. The court is to have regard to the international origins of the Model Law under Article 8. The Explanatory Memorandum encourages the court to use international precedents and it refers to the UNCITRAL website that contains some of the court cases dealing with the Model Law. The cases reported there are mainly from the American jurisdiction at this stage.

Thirdly, if required to determine whether to grant interim relief under Article 19, the Court would need to be satisfied that the relief was urgently needed to protect the Japanese company’s assets (eg the ship and its shares in the Australian subsidiary), or the interests of its creditors. It would also need to consider whether the relief being sought would interfere with the Japanese foreign main proceeding.

Fourth, if the Court recognises the Japanese proceedings as the foreign main proceedings and grants relief under Article 21, in so doing it must consider the protection of the debtor’s assets and the interests of the creditors. Article 22 requires the Court to be satisfied that there is adequate protection for local creditors and the Court may grant the relief subject to any conditions it considers appropriate. In particular, Article 22(3) permits a court, not only at the request of foreign representatives or parties affected by any relief, but also on its own motion, to modify or terminate Article 19 or 21 relief.

Finally, the court may refuse to take action under the Model Law if to do so would be manifestly contrary to Australia’s public policy (Article 6).

The final question on Case Study 2, Question D, asks:
If recognition of the Japanese proceedings is granted, how are the claims of the creditor and the employees likely to be dealt with?

The Model Law deals with an individual corporate debtor, it does not deal with corporate groups as such. So it will be important to determine whether a particular creditor is a creditor of the Japanese company or of the separate Australian entity.

First, the judgment creditor has a judgment against the debtor, the Japanese company, and so its “claim” may be able to be dealt with in the Japanese proceeding. This depends upon the Japanese law and the terms upon which Japan has adopted the Model Law, in particular Article 13 on access of foreign creditors to Japanese proceedings. (No comment is made on any admiralty law implications and the arrest of the ship.)

Even after recognition of the Japanese proceedings as a foreign main proceeding, a creditor may commence local proceedings against the Japanese company as the company has assets in Australia (Article 28). If there are concurrent local proceedings against the Japanese company, then coordination should occur under Article 29.

Next, the employees are creditors of the Australian company. There is a foreign insolvency proceeding against the debtor, the Japanese holding company. If the foreign proceedings are recognised in Australia, it may be that Mr Mitsubishi as the foreign representative will be recognised to the extent that he has control over the Australian assets, including the shareholding in and thus, in a practical sense, the affairs of the Australian company. However there are a number of reasons why one might consider that there would be some benefit for local creditors in putting the Australian company into an insolvency administration. They may wish to commence insolvency proceedings against the local subsidiary to achieve some benefits under local laws, for example, access to employee entitlements under GEERS or to the Corporations Act actions against directors.

LINDGREN J: Thank you. Just before I switch to Tony McGrath for any supplementary comments on Case Study 2, one point, I think, that has to be made is that the Model Law régime is not a reciprocal régime. While the Model Law, by being annexed to the Australian Cross‑Border Insolvency Act, forms part of Australian domestic law, it is not only foreign representatives from other countries that have adopted the Model Law who can apply in Australia. So long as there is a foreign representative, even though the foreign country in question has not adopted the Model Law, that foreign representative can apply to an Australian court with jurisdiction and invoke the provisions of the Model Law in Australia.

MR McGRATH: Thank you Judge. I think for me an interesting question in Case Study 2 is the issue of the Court’s desire to be satisfied that the interests of creditors of the Australian subsidiary are adequately protected. If the Japanese liquidator is seeking to be appointed to the Australian entity, I would have thought a key question would be to understand what that liquidator will do with the assets and how he will address the claims against those companies, and how are they to be dealt with. Is the liquidator to apply Australian law, which I suspect is the case, or is there some greater purpose in all this to try and get a pooled outcome?

The Court would want to understand how the claims of creditors will be met and to understand that the interests of creditors are adequately protected.

Remember this company is an Australian subsidiary entity. If all the companies were located in Australia, the companies would have their own balance sheet and their own differing financial outcomes. I suspect the correct answer is that the Japanese liquidator would seek standing to either appoint himself liquidator or appoint a local practitioner.

That liquidator would need to have regard to the financial position of the subsidiary entity ie, to realise its assets for the benefit of the creditors of the subsidiary. In the event that a surplus remained, as in any traditional winding up, this would be available to go upstream to the Japanese parent.

LINDGREN J: Thank you very much, Tony. Case Study 3 concerns Reitco Limited and for this one Professor Mason again is going to take the lead.

PROF MASON: Thank you Judge. Case Study 3 concerns an Australian company subject to Australian liquidation proceedings seeking recognition of the Australian proceedings in the United States. The Australian company has a wholly owned US subsidiary, which is not subject to insolvency proceedings. That subsidiary own real estate in New York and is in dispute with its tenants.

Question A asks “Does the UNCITRAL Model Law as enacted by the Cross-Border Insolvency Act have any scope of operation” in these circumstances?

The Australian company is the “debtor”. More information on the US law and facts is probably required to answer the following elements necessary for recognition under the US adoption of the Model Law:

The US company is a separate legal entity. The shares in the company are an asset of the debtor and so the liquidators may wish to obtain recognition of the Australian proceedings against the Australian company and hence recognition of their ownership of the shares in the US company and their effective ‘control’ of the US company’s affairs.

Questions A also asks “Are there alternative avenues that might be pursued?”

Under s 581(4), the Australian representatives may seek an Australian court order requesting the aid of the US court. This is an ‘external administration matter’ under s 580 as it is a matter relating to a winding up outside Australia of a body corporate. It will depend on US law whether the US court has jurisdiction to deal with a request for aid.

Question B raises the question “what might a US court do to assist Smith and Jones?”
A threshold issue is whether the US court would recognise the Australian representatives’ authority to control the US company and thus have any role in the US litigation commenced by the tenants against the US company. Alternatively, the Australian liquidators may have grounds to commence an insolvency proceeding in respect of the US company and thus achieve a stay on the tenants’ proceedings.
The US ‘Model Law’ provisions dealing with a local court recognising a foreign proceeding are not only contained in Chapter 15 Bankruptcy Code, but also for example in the definitions section (eg s 101(19) “foreign proceeding” and s 101(20) “foreign representative”). Also there are some differences in drafting. Section 1516(c) refers to “evidence” rather than “proof”; in the context of the rebuttable presumption that a corporate debtor’s registered office is its centre of main interests.

Question C asks “Does your answer to (B) depend on whether the US has adopted the UNCITRAL Model Law on Cross-Border Insolvency?”
There is no reciprocity requirement in providing assistance under the Model Law.
The relevance of whether the US has adopted the Model Law or not is that this would affect the US law (e.g. Chapter 15 Bankruptcy Code or otherwise) under which the Australian liquidators may request the foreign court to grant relief.

LINDGREN J: Thank you, Ros. We’ll now switch to Ian for any comments on Case Study 3. Ian?

MR WALKER: Thank you Judge. The US has implemented the UNCITRAL Model Law in Chapter 15 of its Bankruptcy Code. This commenced in about 2005 but it did not adopt the Australian approach which has been to introduce the Model Law with very few amendments. There is much more detail in the Chapter 15 and I think if anybody is looking at making an application to the US under Chapter 15, then you should have regard to its provisions. The relevant provision under Chapter 15 relating to examination of the officers here, if there was recognition of the Australian liquidation, would be section 1521(a)(4) which is in very similar terms. It provides:

Upon recognition of a foreign proceeding, whether main or non main, where necessary to effectuate the purpose of this chapter and to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including providing for the examination of witnesses ...

They have gone a little further in expressing the purposes of the statute. As a matter of practice, it may be difficult to convince a foreign court that the local entity in this factual situation should actually be subject to the foreign main proceeding. The liquidators may be permitted to conduct examinations in the US, but the practice in the US seems to be that the local entity would itself file for some relief under either Chapter 7 or Chapter 11 and then the foreign main proceeding is joined with that in some way so that as a collective proceeding, the matter proceeds with the judge in charge supervising the entire conduct of the proceedings in the US.

The difference in the US is that pretty much everything is commenced by court proceedings, which is quite different to our practice and the practice in the UK where the process of an insolvency administration in Australia can be commenced by the directors resolving to put the company into administration and appointing an administrator. There is no court involvement in that process. There is, of course, court supervision of all aspects of the administration should it be required.

It has been, in my recent experience, a matter that the US court needs to be convinced about, that an Australian administration or members’ voluntary or creditors’ voluntary winding up, which has no court order or proceeding associated with its commencement, is actually a foreign proceeding within the terms of the US Chapter 15 and I have no doubt that there will be similar questions whenever the process is brought in other jurisdictions where the tests for recognition have to be satisfied.

LINDGREN J: Thank you. That brings us to our final case study, the rather complex Case Study 4, involving the Acme group of companies. On this one, we’re going to hear from our three panellists starting off with Ian Walker, then, Professor Ros Mason and then Tony McGrath.

MR WALKER: Thank you, Judge. In Case Study 4 we have a situation where we have a British Virgin Islands company which is subject to an administration order in the United Kingdom and the administrators are seeking recognition in Australia as a foreign main proceeding. Now, the key facts here are we have a multinational manufacturing company that has a US holding company but all operating entities apart from the US are owned by a British Virgin Islands holding company called Acme BVI.

The registered office of Acme BVI is a shopfront operated out of a local accountancy firm in the British Virgin Islands. There are operating entities in the United Kingdom, Sweden, Germany, France and Australia and the UK provides the treasury function for all of the international subsidiaries and each of those international subsidiaries has a manufacturing plant and skilled workforce. All of the operations are controlled from the United Kingdom, where all senior management are located. However, the company has fallen on hard times. Its worldwide operations have been sold by the administrators as a going concern, except for the Australian operation, Acme A, which has ceased to operate and its staff have been terminated and its assets are sold.

I think it goes without saying that it does. Even if it does, however, are there alternative avenues that might be pursued?

We have heard already this evening of the procedure of letters of request, and obviously it would have been possible here for the UK liquidators simply to seek orders from a UK court under its equivalent of s 581 of our Corporations Act where the Australian court would receive a letter of request requesting assistance for the UK liquidators. That letter of request could request the appointment, for instance, of a receiver to complete any aspects of the process that needed to be done, or even the appointment of a liquidator.

But moving to the application of the Model Law, in this situation the second question directs our attention to the fact that application is made to the Federal Court by the UK administrators for recognition in Australia of the UK administration as a foreign main proceeding in respect of the Australian operation. We’re asked:

So the question we have to consider is can a British Virgin Islands holding company be the subject of an administration order in the UK when most of its operations are in other jurisdictions and in turn, can that administration order be recognised in Australia as a foreign main proceeding? Should it be recognised and how would that question arise here in practice?

Firstly, we should consider that the process by which an application would be made by the UK liquidators. They would need to bring an application under Division 15A of the Federal Court (Corporations) Rules which have been inserted specifically to deal with the effect of the Cross‑Border Insolvency Act. Their application would initially be under rule 15A.3 which would be an application for recognition by a foreign representative for recognition of a foreign proceeding.

This requires the issue of an originating process which is accompanied by a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative, or a certificate from the foreign court affirming the existence of the foreign proceeding and the appointment of the foreign representative. The Model Law provides also that there may be alternatives, that is, other evidence acceptable to the Court if those two pieces of evidence are not available.

The originating process that needs to be issued, must also be accompanied by the statements which are identified in Article 15 of the Model Law. These require the foreign representative to identify all foreign proceedings in respect of the debtor that are known to the foreign representative. These would include any proceedings in this case in the UK or elsewhere. In addition, s 13 of the Cross‑Border Insolvency Act requires the foreign representatives to file a statement identifying what Australian proceedings have been filed, effectively if there have been any appointments of receivers, a controller or a managing controller in relation to the debtor’s property and any proceedings under Chapter 5 or s 601CL of the Corporations Act in respect of the debtor.

The final procedural requirement is that there be an affidavit, presumably by the foreign representative, verifying the matters which establish the existence of the foreign proceeding and the certificate and also the matters relating to the existence of other proceedings. So once that’s done the applicant needs also to file an interlocutory process seeking directions as to service. The Court can give directions but the plaintiff must serve a copy of the originating process in accordance with the Corporations Rules if there is an official liquidator who is involved in the process because an application has been made to entrust the distribution of all or part of the debtor’s assets located in Australia to the foreign representative or another person designated, then if the other person designated is an official liquidator, that person must file a consent to act.

Here, we have a foreign representative coming to the Australian courts. They must, under the Rules also send a notice of the filing of the application to each person who claims to be a creditor of the defendant and publish notice of the filing of the application for recognition of the foreign proceeding in a local newspaper. Accordingly, anyone who is a creditor of the local entity is likely to become aware of the application.

In these circumstances, there is a real possibility that there will be an argument about whether the UK proceeding should receive recognition as a foreign main proceeding. The issue could be raised by an Australian creditor who may, for argument’s sake, seek to argue that the original proceeding is not a foreign main proceeding and that recognition should not be granted. So how would the argument develop? Under Article 17 of the Model Law, if there are no public policy grounds justifying refusal of recognition, then the proceeding will be recognised as long as the foreign proceeding is a proceeding within the meaning of Article 2 which defines “foreign proceeding” as:

The application must meet the requirements of paragraph 2 of Article 15, which we have already touched on, which is the certified copy of the decision commencing the foreign proceeding and appointing the foreign representative or alternatively a certificate from the foreign court. The second element of recognition provided in Article 17 of the Model Law is that the foreign proceeding shall be recognised:

Alternatively, if it is to be a non‑main proceeding, then you must establish that the debtor has an establishment in Australia within the meaning of subpara (f) of Article 2. An “establishment” in that context is any place of operation where the debtor carries out a non‑transitory economic activity with human means and goods or services.

Here we have a situation where, in order for the Court to give recognition, it will have to be established that the foreign proceeding is taking place in the State where the debtor has its centre of main interests. Now, there are a couple of further presumptions which the Model Law introduces in order to assist a court in reaching that conclusion, but relevantly here, para 3 of Article 16 provides that:

The British Virgin Islands company has only a registered office in the British Virgin Islands, it has no other establishment in that jurisdiction, it has no establishment in Australia. The UK administrators have come to Australia seeking recognition as a foreign main proceeding for their administration. They managed to convince a UK court that an administration order should be made in the UK and to convince the UK court to make an administration order in relation to the British Virgin Islands entities with orders in relation to each of the other operating entities operating out of Sweden, Germany and France.

Now, would a UK court make such an order? Daisytech ISA Limited and Others [2003] BC 562, which is an English Chancery case, dealt with petitions for administration orders in relation to a European group of insolvent companies of which the European holding company was an English company which was itself a subsidiary of an American corporation and controlled all of the companies in various countries in Europe. The American corporation went into Chapter 11 and left the European operations under extreme financial stress.

The UK holding company and each of the other companies in Europe petitioned the British court for an administration order to be made in relation to their assets so that there was a greater likelihood of a better return than would be achieved in a winding up. The evidence showed in that case that the trading companies in the group were managed, to a large extent, from the UK and controlled as a group so that the activities of the group were coordinated by the UK head office. There was no issue about the UK company, obviously, but in relation to the European companies, the English court had to find jurisdiction and to do that it could only open insolvency proceedings in respect of the German and French companies if those companies had their centre of main interest in the UK. This followed from Article 3(1) of the European Council Insolvency Proceedings Regulations.

In that case it was held that the identification of the centre of main interest requires the court to consider both the scale and interests administered at a particular place, and also their importance and to consider the scale and importance of its interests administered at any other place which may be regarded as its centre of main interest. Now, although this is a European decision – or a British decision taken in the context of the European Insolvency Regulation – it is likely still to be relevant here for the judicial analysis of the question of what is the centre of main interest.

The other factor of relevance to the question of whether a place is a debtor’s centre of main interests is whether third parties can actually ascertain where their debtor is. The principle here seems to relate to the fact that insolvency is a foreseeable risk and international jurisdictions must be focused on a place known to the debtor’s potential creditors and this enables the legal risks to be assessed so that, in the case of insolvency, the creditor knows where its debtor is and what insolvency régime will apply.

Here the factual circumstances probably do not give sufficient comfort to an Australian court that the centre of main interests is in England. So it may be that recognition here would be only recognition as a foreign non‑main proceeding.

LINDGREN J: Thank you very much, Ian. We are a little pressed for time. I think Ros Mason may have something to add.

PROF MASON: Yes. Just briefly, in looking at this complex set of facts, one matter that I think is worth mentioning is that in relation to Articles 25 to 27 on cooperation with foreign courts and foreign representatives, and cooperating to the maximum extent, Article 27(d) refers to “approval or implementation by courts of agreements concerning the coordination of proceedings”. As to that notion of coordination of proceedings, there are two aspects to highlight.

One is the work mentioned by Jenny Clift by the UNCITRAL Working Group V on “Draft UNCITRAL Notes on Cooperation, Communication and Coordination in Cross-Border Insolvency Proceedings”. The other is the American Law Institute and the International Insolvency Institute’s Guidelines applicable to Court-to-Court Communication in Cross-border Cases referred to in a Practice Note issued by the Supreme Court of New South Wales in October 2008.

LINDGREN J: Thank you Professor Mason. Well, now we have three questions from participants. The first question is from Justice Heath in Auckland.

HEATH J [in Auckland]: First of all I’d to just thank you on behalf of the Judges here for linking us in. It’s been a very interesting experience. One short question, please. The point has been made that while reciprocity is not a condition precedent to the grant of relief, do the panel consider that there may be issues going to the discretion to grant relief if, for example, the court requesting assistance could not give assistance of that type if the request was made the other way?

MR WALKER: Thank you Judge for that question. In Article 6 of the Model Law, part of the provisions for recognition is that nothing in the present law prevents the court hearing the application from refusing to take an action if the action would be manifestly contrary to the public policy of this state. So I think an Australian court faced with an otherwise unacceptable request for cooperation might find some basis for refusing that application based on that public policy if that was the nature of the complaint about the approach.

LINDGREN J: Thank you. I have a note that there may be a question from Melbourne. Is there a question from Melbourne?

MR G. WHITE: Thank you. Greg White. It wasn’t really such a major question but I was just noting when I was looking at the material that there is a requirement in relation to cooperation. When I first looked at the material I thought there might be a number of applications for security for costs and I wondered with the cooperation aspect whether there might be some different approach by the courts if there was an application for security for costs against, particularly, a foreign insolvency practitioner making an application?

LINDGREN J: Thank you. Would any member of the panel like to deal with that question?

That may be where, for example, the issue of security for costs might become relevant.

LINDGREN J: Yes, thank you. Now, we’ll come to the last question in a moment and then the Chief Justice is going to wind up the seminar. I’ll just read to the Judges present this provision from the Model Law. I was going to ask Jenny Clift whether this has ever received any interpretation but I think I had better forego that on account of time constraints. The provision is in Article 17, paragraph 3:

So there’s a heavy onus, apparently, imposed upon us who are Judges but perhaps that provision will be interpreted in a way that will give us at least some time for sleeping. At this point I’ll come to Justice Rares who is in Sydney and who has a question.

RARES J: I was wondering in relation to Case Study 2, what considerations would come into play about the International Convention on Arrest of Ships. This ship has been arrested. The Admiralty Act provides for the recognition of arrests. Is the ship arrested in an in rem proceeding or has the Japanese company appeared in personam and how do you then apply this sort of interaction between international conventions dealing with arresting vessels and the application to stay the marshal’s processes under the Admiralty Act? It may be that that’s something that the Admiralty Committee can deal with in a separate seminar which we propose to hold early next year, but does anybody have any comment on that?

LINDGREN J: Just before I throw that question to the Panel, John Levingston, a member of the Bar in Sydney has written, I think, two articles on the interaction between admiralty law and insolvency law with particular reference to cross‑border insolvency. One of those articles appeared recently in the Insolvency Law Bulletin and the other, I think, in the Australian Law Journal, if you’re interested to pursue that question in some detail. Would any member of the panel like to respond?

MR WALKER: I think Justice Rares’s suggestion was a great one and it should be referred to the Admiralty Committee. My only comment would be that if the arrest has already occurred and the Marshal is in the process of actually completing a sale or about to, then the effect of a recognition as a foreign main proceeding should produce the effect that that execution is at least stayed until further orders are made. But I’m not quite sure of how that interacts with the International Convention on Arrest of Ships. If the arrest had already occurred I think then one would expect that the Australian Admiralty Rules would at least deal with that and there is no real difference between that and any other sort of asset at that point.

LINDGREN J: Thank you, Ian. Well, at this point we’ll cross to Melbourne to the Chief Justice for concluding comments.

I would like to add a footnote about the harmonised rules. The Corporations Rules are harmonised now between all the Supreme Courts and the Federal Court, as are the special rules dealing with the present subject of Cross-Border Insolvency. Harmonisation of this nature is a substantial achievement. It has been achieved by a Committee under the leadership of Justice Lindgren. This harmonised approach is good evidence of the national way in which, increasingly, we think about our profession and our law.

In conclusion, I want to thank everyone who has been responsible for this evening’s seminar. Specifically, of course, Justice Lindgren, Justice Logan, Jenny Clift, Ian Walker, Tony McGrath and Professor Ros Mason. Thank you all very much indeed on behalf of everyone here for a very stimulating seminar.

I also want to thank the Federal Court staff. Technically the arrangements have worked very well indeed and that is due to the work of the Court’s staff and the Court video operators we have throughout the country.

So, on behalf of everyone, thank you Panel, thank you Court staff. It is now my happy task to invite everyone to join us for light refreshments in the various Registries of the Court. I am sorry that I cannot extend that invitation to our New Zealand colleagues but it is just possible that they have made their own arrangements. And might I say again how delighted we have been to cross to Auckland to our judicial colleagues there.

Ladies and Gentlemen, thank you all very much. Please join us now for light refreshments.

Jenny Clift, Senior Legal Officer, Office of Legal Affairs, United Nations
jenny.clift@uncitral.org

Jenny Clift is a Senior Legal Officer and Head of Technical Assistance and Cooperation with the International Trade Law Division, United Nations Office of Legal Affairs, which functions as the Secretariat for the United Nations Commission on International Trade Law (UNCITRAL). Since December 2000, she has been secretary of the insolvency working group, which in 2004 completed the UNCITRAL Legislative Guide on Insolvency Law and in 2006 commenced work on the treatment of enterprise groups in insolvency. A further project is the compilation of practice with respect to coordination and cooperation in cross-insolvency border cases, with particular emphasis on the negotiation and use of cross-border agreements.
In March 2008, Ms Clift was appointed by the Secretary-General of the United Nations to the Internal Justice Council, a 5-member body established by the General Assembly to help build a new system for the internal administration of justice in the United Nations.
She holds the degrees of BA. LLB (Hons) and LLM from Australia, and has studied Mandarin (Chinese) in Australia and the PRC, living in Beijing between 1987 and 1990.

Dr Rosalind Mason, BA LLB(Hons) Qld, LLM Syd, PhD Qld
Professor (Law) and Head, School of Law, Queensland University of Technology, has taught undergraduate and postgraduate insolvency courses through flexible delivery mode to accountants, lawyers, bankers and others from around Australia, and has presented at national and international conferences as well as published in her areas of major research interest, cross-border insolvency and consumer bankruptcy. Rosalind has close links with members of both the legal and accounting professions engaged in insolvency practice. In 2006, she was appointed a member of the Insolvency Law Advisory Group established by Treasury to advise on corporate insolvency law reform. Rosalind is a member of INSOL International’s Academics’ Steering Committee and the 2008 faculty for INSOL’s Global Insolvency Practice course. She is on the Editorial Board of the International Insolvency Review and the Insolvency Law Journal.

As a Professor, Rosalind contributes to academic leadership not only within the law discipline but also more broadly within the Faculty and University. At national level she contributes in her role as incoming Chair of the Australasian Law Teachers Association. As Head of School, Rosalind is responsible for leading the community of academics and professional staff who constitute the QUT School of Law, the second largest such school in Australia.

Tony McGrath is a Partner and Chairman of leading restructuring firm McGrathNicol.

Tony has 25 years experience specialising in Corporate Recovery. During that time he has led numerous major assignments including:-

Tony has acted for a range of clients including local and international banks, regulators and corporates.

Ian Walker, B Comm (Melbourne) LLB (Melbourne), is a partner in the Insolvency & Reconstruction and Commercial Disputes groups of the Melbourne office of Minter Ellison. He has more than 20 years' experience and comments regularly on insolvency law reform issues. He is a member of the Law Council of Australia's Insolvency and Reconstruction sub-committee and one of the co-vice chairs of the Insolvency Legislation and Legislative Reform and Harmonization Sub-committee of the Section on Insolvency Reconstruction and Creditors Rights (SIRC) of the International Bar Association.

Ian’s expertise is recognised by publications such as APL500 2009 and Chambers Global 2008 where he is named as a leading individual for restructuring and insolvency, and PLC Which Lawyer? 2008/2009 (as a 'leading' insolvency lawyer). Ian was also named in 'Best Lawyer' published in the Australian Financial Review in March 2008.

Ian wrote the Australian chapter in Expedited Debt Restructuring. An International Comparative Analysis published in 2007 by Kluwer Law International.

(a) Cooperation between the courts and other competent authorities of this State and foreign States involved in cases of cross-border insolvency; (b) Greater legal certainty for trade and investment; (c) Fair and efficient administration of cross-border insolvencies that protects the interests of all creditors and other interested persons, including the debtor; (d) Protection and maximization of the value of the debtor’s assets; and (e) Facilitation of the rescue of financially troubled businesses, thereby protecting investment and preserving employment.

Disclaimer: A model law is created as a suggested pattern for law-makers to consider adopting as part of their domestic legislation. Since States enacting legislation based upon a model law have the flexibility to depart from the text, the above list is only indicative of the enactments that were made known to the UNCITRAL Secretariat. The legislation of each State should be considered in order to identify the exact nature of any possible deviation from the model in the legislative text that was adopted. The year of enactment indicated is the year the legislation was passed by the relevant legislative body, as advised to the UNCITRAL Secretariat; it does not address the date of entry into force of that piece of legislation, the procedures for which vary from State to State, and could result in entry into force some time after enactment.

In re Bear Stearns High-Grade Structured Credit Strategies Master Fund Ltd., 374 B.R. 122 (Bankr. S.D.N.Y. 2007)

In re Bear Stearns High-Grade Structured Credit Strategies Master Fund Ltd., 2008 WL 2198272 (S.D.N.Y. May 27, 2008)