| Federal Court of Australia | |
| Practice Notes issued by the Chief Justice |
| No. 29. Cross-Border Insolvency – Cooperation with Foreign Courts or Foreign Representatives |
| Status: | Revoked |
| Date issued: | 2 March 2009 |
| Date revoked: | 25 September 2009 |
| Replaced by: | Practice Note CORP 2 - Cross-border insolvency - Cooperation with foreign courts or foreign representatives |
| Version history: |   25 September 2009 (CORP 2) 2 March 2009 |
The Cross-Border Insolvency Act 2008 (Cth)
(the Act)
provides in s 6 that, subject to the Act, the Model Law on
Cross-Border
Insolvency of the United Nations Commission on International Trade
Law
(UNCITRAL) (the Model Law), with the modifications set out in Pt 2
of the
Act, has the force of law in Australia. The English text of the
Model Law is
set out in Schedule 1 to the Act.
Chapter IV of the Model Law, comprising articles 25–27, provides for cooperation with foreign courts and foreign representatives in the cross-border insolvency matters that are referred to in Article 1 of the Model Law.
Articles 25 and 27 of the Model Law, as modified by s 11 of the Act, and as presently relevant, provide:
Article 25
Cooperation and direct
communication between [this Court] and
foreign courts or foreign representatives
1. In matters referred to in article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of section 9 of the Corporations Act 2001).
2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives.
Article 27
Forms of cooperation
Cooperation referred to in [article 25] may be implemented by any appropriate means, including:
(a) Appointment of a person or body to act at the direction of the court;
(b) Communication of information by any means considered appropriate by the court;
(c) Coordination of the administration and supervision of the debtor’s assets and affairs;
(d) Approval or implementation by courts of agreements concerning the coordination of proceedings;
(e) Coordination of concurrent proceedings regarding the same debtor;
(f) [The enacting State may wish to list additional forms or examples of cooperation].
[Section 18 of the Act provides that no additional forms or examples of cooperation are added.]
The form or forms of cooperation appropriate to each particular case will depend on the circumstances of that case. As experience and jurisprudence in this area develop, it may be possible for later versions of this Practice Note to lay down certain parameters or guidelines.
Cooperation between the Court and a foreign court or foreign representative under article 25 will generally occur within a framework or protocol that has previously been approved by the Court, and is known to the parties, in the particular proceeding. Ordinarily it will be the parties who will draft the framework or protocol. In doing so, the parties should have regard to:
M E J BLACK
Chief Justice
2 March 2009