Cross-Border Insolvency Proceedings: Where Does The United Kingdom Stand?
This is the time of ever-increasing competition between corporations forcing them to make the most of resources available to them and when there are no better resources available to corporations, they do not hesitate to cross borders and exploit resources offered by other states. Technology and growth in rising demands have made it a lot easier and feasible for businesses to look over their national boundaries. Incentives that drive corporations and individuals to take such steps are numerous, and are not the focus of this paper. It is interesting to note that past few decades have seen the boom in multinational corporations.
Although the phenomenon of multinational businesses is not new at all, it is has certainly not reached its peak. There is variety of benefits that can be gained from expansion of businesses to other states but such expansion comes with associated risks that, unfortunately, sometimes lead to failure of corporations. Dealing appropriately and efficiently with such failures is the key to successful development of multinational corporations. Thus focus of this paper concentrates on cross-border insolvency.
Most of the risks that play part in failure of such corporations are inherent in the very nature of trans-national businesses. These may includes the lack of information about other jurisdiction system, lack of linguistic skills needed to carry out business in other state and this also means that interpretation of legal instruments related to such businesses will not always be well understood, the political stability also plays an important role in the well being of such businesses. Along with these added factors that lead to the collapse of business, are the usual risks that run along with the very nature of businesses, such as maladministration, natural disasters.
What make the multi-jurisdictional insolvency so unique as compared to domestic insolvency proceedings are the problems encountered by it. Although, the variety and extent of such problems will be considered below, obvious of them is the disparity between countries’ insolvency laws. It may be the way actions are brought under them, differences in the priorities rendered for creditors, differences to in rights attached to carious assets and securities. Along with these, there can be the issue of recognition of overseas representatives and the extent of the powers they may exercise within the local jurisdiction. All such issues are not the focus of this paper but will be given appropriate consideration wherever required.
As we are now in such a technologically advanced stage that failures of multinational corporations can easily be dealt with, provided there is willingness of states to achieve such goals, be that re-organisation of corporation over a number of states or realization of assets. Academics, professionals, judges in courts, International organisations and other reputable personalities that could achieve the best results when it comes to dealing with failed multinational corporations have forwarded various theories and methods, over the time. Most of these theories and methods will be examined to establish which, actually, provides the best solution.
More importantly, this article will concentrate on the steps taken by United Kingdom to achieve such solutions and whether they provide a long-term answer to the problems faced by multinational corporations. Amongst other steps taken, United Kingdom has adopted two legal instruments that claim to achieve this goal; they are the UNCITRAL Model Law on cross-border insolvency and the European Cross-Border Insolvency Regulation. This obviously has lead to overlap of rules derived from these regulations and domestic laws regarding insolvency proceedings.
However, not all set rules apply simultaneously to every type of insolvency and thus, frequently, the best results are achieved by the application of most appropriate set of rules to that particular insolvency proceeding. It is vital to the welfare and survival of businesses that rules should be, which govern, made in consideration of commercial realities surrounding business world. Rules which steer us through the process of re-organisation or winding up of a company, do not just affect that particular corporation but establish precedent for other corporations as to how they will be dealt, if unfortunately they face the same situation.
This has immense effect on creditors and how they will provide financial aid to corporations in certain jurisdictions and what price (increased interest) the debtors (corporations) will have to pay to get such aid. Creditors, whose main aim is to make the most of their money, are for greater part interested in where they would get the most return for their credit and where they are provided with the certainty of such return.
It is in the interest of all corporations that they get the best deals from creditors, which eventually reflects the final products and services provided by such debtors. The cheaper the product and service provided by them, the better chance they get to compete successfully with other corporations. Thus, the ways the insolvency proceedings of a multinational corporation are dealt have an enormous effect not only on the creditors but also on the private sector and eventually on the society and state as well.
For that purpose, this article will compare the various theories on how to deal with cross-border insolvency proceedings and establish which one of the existing theories and methods are in the best interests of all the major players. Once that has been established, the next phase of this paper will concentrate on their successful adoption in United Kingdom and what more is still required to be done.
2. Theories and Methods
Two main theories when it comes to dealing with international insolvencies are universalism and territorialism. Briefly, under territorialism, “the courts in each national jurisdiction seize the property physically within their control and distribute it according to local rules”. This is the conventional presumption behind cross-border insolvencies; it has been in action since long and now nations are appreciating the want to move in the direction of universalism.
The rationale due to which territorialism that has been convincing in the past, still is in several countries, is the deficiency in means and lack of technology in past to expand businesses into other countries. This primarily certainly not encouraged nations to consider outside their boundaries as they were contented with the assets on hand within these states and didn’t had the need of peeking at the global scenario. In addition, there is always the apprehension of hidden effects on country’s creditors and its domestic financial system if that state switches to universalistic vision. Such worries are deep-seated in numerous states and would require time to dissolve.
Advances in technology now furnish the countries to utilize foreign resources for their benefit and this involve changing the conventional philosophy that had engaged the minds of strategy makers. That change is universalism. In its unsophisticated form, it means that all insolvency claims would be umpired inside the debtor’s “home country” and would apply the substantive rules of that state. Founded on the law of that jurisdiction, the assets of the corporation would be circulated to creditors here and there in the globe. These two theories are at extremes but the model state would be somewhere between these theories. This article will now focus on these two main theories; separately and then consider what would be the best approach.
It is also branded “grab rule” and is still common in numerous jurisdictions. However, few countries would protest to the involvement of overseas creditors in their trials. It does not, inevitably, conclude that they will be handled pari passu with home creditors and they also may confront inconveniences such as lack of knowledge and information, their capability to be diligent and to defeat procedural obstacles.
This will in addition signify that supplementary proceedings will initiate in other jurisdictions, where jurisdictions exercising territorialism attitude would not benefit from same privilege if they were holding universalistic approach towards the proceedings. The most leading argument that comes in support of territorialism is that it offers better way out for home creditors where assets consist smaller pool than otherwise. It gives security to creditors, like employees who will be able to rely on state’s legislative system. Nevertheless, they might not be in a beneficial position if the assets accessible in the territory are fewer than assets held by other countries.
Further, as it will be seen, given the volatility neighbouring the availability of assets at the instance of corporation becoming insolvent, this heads into improbability under territorialism and bigger costs. It is not favourable for overseas creditors as the only mean by which they can take share of the assets in the jurisdiction following territoriality is by proving in local courts. Likewise, the local authority will not aspire to exhibit manage or claim assets located outside the jurisdiction. Territorialism oppositions to universalism rest on the handling of small, local creditors. It lays on the principle that “universalism would be unpredictable to all but the largest creditors of multinational companies.” Conversely, under territorialism it would be tremendously complicated to reorganise corporations, as local proceedings are not generally intended to maximising the return other than for local creditors.
Unless there are apparent local set of laws in position that involve the local insolvency representatives to relocate the assets to another place to assist, they would be reluctant to do so. Relatively time and again, there may be no explicit legislative authority for assistance and any dealings which could assist insolvency proceedings somewhere else may be deemed contrary to domestic law. This settles that jurisdictions taking territorial vision mean that insolvency, and not corporate salvage, becomes the custom when this ideology is applied, regardless of the likelihood that the jurisdiction will hold quite a refined rescue system. Territorialism also generates uneven results for creditors, in spite of the likelihood that local regulations will pledge to the pari passu standard of equivalent handling of creditors.
National proceedings may not be openly biased but overseas creditors may be at drawback as they may not be capable to take part in their debtor’s liquidation because of lack of efficient note of proceedings and complications, particularly with language and legal hindrances, which may result in claims being administered late or out of time. Beside this, the time, expenditure and doubt over involvement in debtor’s insolvency may be reasons, which put them off from taking any part in it. Territorial jurisdiction prides itself by defending and providing for home creditors but conditional on what resources and how much of them are available within jurisdiction it may equally turn to their disadvantage.
With the advent of industrial advances shrewd debtors can transfer assets wit rapid ease from one jurisdiction to another with view of benefiting preferred creditors or other persons. Insolvency practitioners may not possess the expertise in tracing such transfer of assets back to the table. Thus, it will mostly be left to creditors to avail their own solutions, not many creditors would take this course of action, apparently those sufficiently powerful will take the benefit of numerous proceedings and establish debts in different states, provided there is a lot at risk. All such hazards and doubts present in international insolvencies generally pilot to bigger expenditures in financing international businesses.
This phenomenon is used to two senses. First, as in contrast to territorialism, it channels expansion of authority cover all of the assets of the defaulter anywhere located. Secondly, in a technical sense, it refers to the synchronization of what happens to the debtor’s widespread assets in a single proceeding. Universalism is mainly preferred by legal and academics as it offers sensibly a more expedient system of implementing rules and the accustomed legal consequences of deference entrenched in the acknowledgment by other jurisdictions of the domination of one set of rules.
So once the capable forum has been established, the universality standard permits for an effectual option of law to deal with all queries associated to the debtor, therefore resulting in a unified law for the determination of the insolvency in question. In addition, there would not be at all awkward state of conflicts of laws in jurisdictions. Still, as it will be later seen, that this standard also has its own shortcomings, mainly forum shopping. In a few words, it is the rivalry amid the creditors of different countries to locate the forum (jurisdiction) that will assure them enhanced gain, either by employing their priority regulations under which they would achieve more than other jurisdiction with distinctive set of regulations which could not offer such security.
Professor Jay Westbrook deals with the belief of universalism from financial scenarios. He singles out two effects created by universalism i.e. the Rough Wash and Net Gain. The former focuses on settlements from the position of home creditors, universality regime would balance any losses or gains for home creditors who would obtain as much from the picking of the domestic courts and approval of this fact by overseas courts in any set of proceedings as where the converse happens and the out of the country courts takes jurisdiction in another set of proceedings. The net effect of the Rough Wash will be the foundation of a net growth of worth for creditors in general from the initiation of the system.
The Net Gain contention takes the advantage contention further by maintaining that there would be increase in trade from lower operation costs and the associated increase in trade as of the comparative assurance that would be established by such a regulation. Apparently, these approaches are qualified on a distinguished level of reciprocity put together into the structure. Universalism also has its disapprovals. largely, they originate from the problems of sorting out the application of the riles of a solitary legal scheme to assets present in various countries.
This is particularly correct for “tricky” assets, especially real property laden with charges, intellectual assets (property) and intangible ethical rights, other intangible resources such as shares, bonds and debentures, special goods such as ships and aircraft and still usual assets where peculiarities attributed to those assets make their arbitration and realisation complicated. The obstacles that universality tackles also consist of the bearing of sensitive areas of law, such as family law, which may hinder apprehension of a debtor’s assets and the presence of obligatory or common public law regulations, which may foil effective appreciation of the function and implementation of laws in a different legal system.
2.3. Theories Appraised
Conventionally, state governments could concentrate on their domestic finances without unwarranted notice of international issues. nowadays, however, a country’s strategy makers must answer to the increase in international trade activity with appropriate legal transformations. Failure to do so will bring about their legal systems to plunge further and further out of steps with the requirements of the international marketplace.
Such affairs are not new at all. In an editorial published in the Harvard Law Review in 1888, John Lowell Wrote: “it is obvious that… it would be better in nine cases out of ten that all settlements of insolvent debtors with their creditors should be made in single proceedings, and generally at a single place”. A century later Donald T. still reiterates the similar points: “All questions of importance to the distribution of the debtor’s assets should be governed by the law of the debtors”.
Those who support universalism maintain that it would generate a range of benefits, including a more well-organized ex ante allocation of assets, cheap administrative expenditure due to a decrease in the amount of proceedings, evasion of forum shopping and the contest to file, facilitated reorganizations, enhanced liquidation worth, and the condition of transparency and confidence to all parties.
2.3.1. Non-adjusting creditors
One important method of determining is by looking the standing of “non-adjusting” creditors, under the doctrine of both the territorialism and universalism. Because in aggressive markets the “adjusting” creditors will alter the provisions of their loan to mirror the perils they can deal with, principally by charging extra interest rate, they will obtain return for their loan in the marketplace notwithstanding which jurisdictional standard applies. As long as the creditors appreciate the liquidation rules ex ante, however, they will be capable to alter the out-of-insolvency rate of return that they require.
From the approaching of the debtor, nonetheless, the choice of system is significant even if every creditor adjust, as a reduction in the expenses forced by the liquidation scheme will decrease the general cost of lending – leading to a drop in the expenditure of funds for debtors. It is of importance to debtor that insolvency system be steered by the overall competence of the system.
Keeping this in mind, universalism produces the generally appealing regime as it offers greater assurance with respect to the relevant regulations, lesser proceedings expenses, and a improved scheme for restructuring than does territorialism.
Consequently it appears that, three group of players are potentially affected by the choice of jurisdiction, i.e. adjusting creditors, who are indifferent to the choice of regime; debtors, who prefer universalism because it imposes lower costs; and non-adjusting creditors, whose role is examined in detail below. Unless non-adjusting creditors suffer losses under universalism that prevail over the competence benefits of that system, territorialism ought to be abandoned.
188.8.131.52. Who are non-adjusting creditors
As the term symbolizes, these are creditors that cannot, or will not, alter the provisions of their lending on a case-by-case base in order to take into report the perils linked with the credit, as well as the risk of non-payment. One case can be the tort creditors who go into a creditor relationship with the tortfeasors reluctantly and clearly do not change the stipulations of that association to mirror the vulnerability that debtor may not reimburse. The non-adjusting creditor group contains both unintentional creditors, such as taxation establishments and tort creditors, as well as intentional creditors, such as trade creditors.
The common class of non-adjusting creditors can be separated into two subcategories, which can be characterized as “weakly non-adjusting ” and “strongly non-adjusting.” The creditors vary in the scale to which they modify credit provisions over the complete portfolio of loan.
When confronted with risks non-adjusting creditors will bend the terms of lending on ordinary value basis estimated over the entire portfolio of lending, are classified as weakly non-adjusting creditors. One illustration is the credit card companies; they will charge same interest rate to all of its customers, without distinguishing one from the other based on danger of non-payment. They will set up a general interest rate in expectation of the dangers of non-payment, so that they receive a sound rate of return. Retail customers, trade creditors, workers, property-owner, educational lenders and health nursing providers, may as well appear under this class. even though, such groups offer credit willingly, but usually does not alter the provisions of the lending on a debtor-by-debtor basis.
Voluntary creditors can alter each individual credit to take into consideration the perils presented by a particular debtor but they might choose to be non-adjusting because, for example, it is too expensive to carry out a vigilant assessment of each deal and to arrange suitable terms for a particular credit. As to calculate the risk caused by a particular debtor, the creditor have to consider the worth of that debtor’s property, the sum of arrears carried by the debtor, the appropriate provisions of the applicable bankruptcy regime, and so on.
On the contrary to weakly non-adjusting creditors, strongly non-adjusting creditors tender credit on conditions that fail to alter even for general lending portfolio of the creditor. Tort creditors are one kind of creditors that come under the group of such creditors. They become creditors as a consequence of injury or mishap lacking negotiation and lacking power over the provisions of their lending. Tax commitments stand for another likely case of strongly non-adjusting creditors.
184.108.40.206 Why consider non-adjusting creditors
The position of non-adjusting creditors is considered for two main reasons. Initially, non-adjusting creditors will not be able to perform efficiently under a system of universalism, probably undermining the argument for such a system. Where creditors are totally adjusting, they pick the loan provisions of every business deal to generate a economical return to the lender ex ante. Where creditors are non-adjusting, on the other hand, they do not modify terms to the particular transaction.
This head to erroneous borrowing conclusions on part of the defaulter and, in effect, a funding paid from low-risk debtor to high-risk debtors. This leads to circumstances where high-risk debtors will have access to too much (and, consequently, over-invest in their business), and low-risk debtors will borrow insufficiently (and under-invest in their business). As universalism may add to the difference in risk confronted by loan, it may ultimately enhance the extent of this distortion.
Secondly, that non-adjusting creditors perform an important constructive purpose. Regardless of the encouragement for universalism the strategy makers have preferred not to implement universalism. Various arguments have been put forward in favour of territorialism; mainly that under territorialism local creditors are provided enhanced security, predominantly by refusing to turn home assets over to overseas authorities. The unwillingness to approve universalist views is founded on a common observation, one also shared by numerous followers of universalism, that local creditors undergo losses when a state gives up territoriality. one of the most well-known contributor to the field of international insolvencies and stanch enthusiast of universalism in USA, Professor Westbrook stated:
The central argument for the Rough Wash is that a universalist rule will roughly even out benefits and loses for local creditors, who will gain enough from foreign deference to the local forum in one case to balance any loss from local deference to the forum in another…
United states judges have recognized a related apprehensions for the ex post handling of home creditors and, hence, a opposition to universalism. For example, in In re Toga Manufacturing, a Canadian company involved in insolvency proceedings in Canada sought sanction in opposition to creditors action and turnover of U.S. based resources. The court turned down the petition, asserting that the “court must protect United States citizens’ claims against foreign judgements inconsistent with this country’s well defined and accepted policies”
Courts or commentators do not always understand concerns about the troubles of local creditors under universalism that are simply misplaced if every creditor can amend provisions of loan to mirror the risks they confront. As capital markets are economical, adjusting creditors get a reasonable rate of return ex ante. If they are to be deprived of recovery in the incident of insolvency, they plainly will charge a elevated rate outside of liquidation.
Thus, no satisfactory rationale is present to require that they should attain a particular return in insolvency. Merely, efforts to “protect” home creditors by ensuring that they get a better recovery in liquidation would lead to poorer recoveries by such creditors outside of insolvency – the ex ante anticipated return is unchanged. Knowing the significance of adopting this ex ante awareness rather than the ex post awareness that governs the literature is vital step in grasping the rewards of universalism.
It turns out to be true that concerns for the benefits of local creditors make difference only as when applied to non-adjusting creditors, as adjusting creditors will take the current policies into account. As the argument for territorialism greatly relies on being of non-adjusting creditors, so if this group of creditors is happier under territorialism only then can that system be encouraged. If it becomes evident that concerns about non-adjusting creditors are misplaced, or if the expenses produced by the existence of non-adjusting creditors are smaller in scale than the advantages of universalism, then the justification for territorialism is not satisfactory.
There is a dispute as the most effective way to treat non-adjusting creditors in the local realm. But, picking a establishment as “best” is not practical as there is no conformity as to which set of laws are best. Thus, not considering of who is right in the full priority question in the local sphere, the study of this paper provides insight into how non-adjusting creditors ought to be dealt with in transnational scenarios.
220.127.116.11. Weakly non-adjusting creditors
Even though each debtor will pose distinct intensity of risks to weakly non-adjusting creditor, the creditor will put a general rate of interest. This combination of risk means that debtors demonstrating a comparatively high level of risk for the creditor will be eligible to take loans based on provisions that are more favourable than would be, if the creditor were adjusting creditor. In contrast, low-risk debtors will meet terms that are not quite favourable than what an adjusting creditor would put forward.
The low-risk debtors, therefore, finance the high-risk debtors, and this financial support influence borrowing decisions. In addition, as the difference in risk between loans to the high and low-risk debtor grows, so does the magnitude of the associated distortion. But it does not change the creditors over all portfolio for loans, as they get an likely return that is in tuned for the general risk they confront and the chosen law objective is merely to improve the effectiveness of this lending – whose benefits are enjoyed by the debtor. Unlike territorialism, under universalism the lending relies on the substantive rules of liquidation – particularly the priority system – of the debtor’s jurisdiction.
A creditor may give to debtors of various jurisdictions; the risks of collapse of corporation confronted by the creditor will depend on the character of the debtor in a specific case. as a result, for non-adjusting creditors, universalism heightens the distortion in a manner that territorialism does not. Thus, as a consequence of the dissimilarity amongst insolvency systems, universalism boosts the variance of the hazards confronted by the creditor, magnifies the extent of distortion in lending, and diminishes the effectiveness of lending by weakly non-adjusting creditors.
18.104.22.168. Strongly non-adjusting creditors
Assuming, strongly non-adjusting creditors do not to adjust the provisions of their lending to mirror the probability of recovery in liquidation. They do not alter on case-by-case footing nor over their whole portfolio of loans. A scheme intended to give these creditors the chance to regain under home rules would, as a result, bring in no efficiency benefits. Strongly non-adjusting creditors will act in the similar manner in spite of the insolvency rules. Yet there are two causes of worry concerning them. First, a system of fairness disagreement might occur, premised on the idea that these creditors are in someway permitted to recover under local law.
Nonetheless, this disagreement is short of strength, as this category of creditors does not rely on local regulations. More significantly, the handling of strongly non-adjusting creditors ought not be authorized to defy the improved totality of recovery and better fairness produced by universalism. Secondly, it may be contended that strongly non-adjusting creditors will realize it to be hard to bright their claim in a remote forum. To the point this is correct, measures can be established to hire an agent who could petition claims for such creditors. For instance, an agent could stand for all employees in case. Such an move would decrease the expenses forced on these creditors.
2.3.2. Costs of universalism
Whilst drafting the provisions for its portfolio of loans, one would anticipate a weakly non-adjusting creditor to think about a lot of factors that are not directly relevant to insolvency system. These would consist of the characteristics of the group of debtors; other uses of the resources; the out-of-insolvency pooling system offered to creditor; the probability of insolvency; the quantity and priority of other creditor; the whole sum of unpaid debt; the chances that the debtors will get into future debt; the possibility that legal claims are at present are imminent or will occur in the future; and the capability to put into effect a judgement against a overseas debtor.
The above aspects will have a great deal of direct consequence on creditor lending provisions, although the selection of insolvency system has an oblique effect on the creditor’s provisions of lending. As the insolvency system will have an indirect outcome and thus secondary outcome on the terms presented by the creditor reaching a deal in the shadow of the law. The selection of territorialism in contrast to universalism, therefore, will have merely a little effect on the anticipated return of the creditor.
The sole category of non-adjusting creditors whose anticipated return is considerably affected by the selection of law comprise those creditors that will get less priority in one insolvency system and not under another. For instance, when a multinational corporation whose home country is overseas goes into insolvency, local non-adjusting creditors will desire for territorialism if national law offers them preference over overseas creditors, while foreign law does not. Alternatively, they will favour universalism where local law does not offer them priority but foreign insolvency rules do.
2.3.3. Cost of territorialism
Expenses of territorialism are most central to our debate of non-adjusting creditors. In territorialism, as discussed earlier, an adjusting creditor has to take into consideration various aspects that can influence his provisions of lending. Exploring such range of aspects, including the size and priority of other remaining debts would be expensive than if the adjusting creditor were offering loans to debtor/s in countries upholding the standard of universalism.
Because under universalism, the creditor can confine his inquest to the law of one state (the debtor’s country), and then only required to spot the recent and probable future loans of the debtor and the worth of assets expected to be on hand in insolvency to please creditors. Because of that it is why, unlike universalism, the creditors informational needs, and its business expenses, are much bigger as the expenditure of gathering each piece of information is higher under territorialism than it is in universalism. The raise in expenses put on on creditors (and carried on to debtors) will change the conduct of creditor, motivating some of them to turn into weakly non-adjusting. Therefore it can be said that, even though, territorialism diminishes the scale of the distortion, as mentioned earlier, it multiplies the figure of creditors that confront a distortion of this type.
It is implicit here that even if we gaze only at the competence of lending decisions by non-adjusting creditors and pay no attention to the range of other expenditures of territorialism, universalism need to be preferred over territorialism. Thus, even considering the effect on weakly non-adjusting creditors – the one situation where universalism appears to inflict costs – it is totally probable that territorialism necessitates even greater costs.
The next issue, and the author thinks as the most important, is of reorganization. As cross-border firms are likely to be spread over many borders and employ serious amount of workers and generate good sum of revenue, we can conclude that the corporations affected by the option of universalism or territorialism will naturally be looking to reorganize rather than becoming insolvent. It means that we must focus, on the concern of multinational corporations, more on restructuring rather than insolvency.
As soon as this is realized, the justification for universalism becomes more significant. Reorganization has a good potential under universalism, pretty obviously as the law of a single country regulate the judgment of whether or not to restructure. The locality of the assets influences the reorganization choice only to the level that their location influences the debtor’s company. Under territorialism, on the other hand, restructuring also dependant on the conclusions of all other related authorities.
It is obvious that a value-maximising conclusion on a reorganisation demands a centralized system. Universalism provides a much-improved structure for restructuring as it puts all resources of the corporation under the command of a particular court. The incapability of a territorialist system to deal efficiently with the restructuring eventually leads one of the principal problems with that approach.
2.4. Other associated issues
2.4.1. Finding the “home country”
For universalism to succeed, certainly, one needs recognize the “home country” of the debtor. In the simplest type of universalism, the overriding law is that of the “main” country, mentioned as the home country of the debtor. The likely methodology for defining the main jurisdiction includes the location of incorporation, the main place of commerce and trade, and the “centre of main interests.” The participants to a business deal must know which is the main authority in order to amend the provisions of the loan suitably, however, if it is too simple for the debtor to alter the main jurisdiction, it could select a jurisdiction in such a manner as to inconvenience of strongly non-adjusting creditors that will probably be involved with the firm at sometime or are already involved.
This, consecutively, would create an inducement for countries to offer system that accords non-adjusting creditors a low priority. For this rationale, a test based on the location of incorporation would be unsuitable. A test such as the prime location of trade, on the other hand, is a much more hard for the debtor to control.
22.214.171.124. Lack of agreement
Professor LoPucki states that this lack over the criterion to use in identifying the home country signifies a major dilemma for supporters of universalism asserting that “the home countries of a substantial number of companies remain in doubt.” There is no doubt that a universalist scheme should select a single test to establish the home country, but this does not amount to a reason to favour territorialism. Furthermore, there is prevalent agreement amongst those interested in transnational insolvencies that, in the huge majority of cases, the home country will be straightforward to discover – making the concern a small problem.
In those few cases where uncertainty exists, creditors must take that ambiguity into consideration when they discuss the lending. Whilst this will initiate inefficiency in few cases, creditors will seldom need to contemplate more than two jurisdictions. While in territorialism creditors ought to think about the laws of all jurisdictions in which assets are situated, or into which assets may shift.
2.4.2. Taking away the assets
There is also the difficulty of assets being taken away on the eve of liquidation. It is a grim dilemma for territorialism. It is pragmatic that contractual answers to the problem of removal are achievable, but they arrive at considerable cost. Examine that the dilemma here is much larger than the planned removal of resources on the eve of liquidation. It comprises the transfer of assets at any time after the creditor lends to the debtor.
Such transfer weakens the effectiveness of the lending. If creditors inflict limits on the movement of resources, they bound the capability of the firm to chase opportunities overseas. This represents both a private and social expenditure that is averted through universalism. Creating a scheme that encourages such contractual limits on all large-debt contracts represents a considerable restriction on international assets mobility. The main difficulty with a contract-based scheme is not that it in someway represents poor policy, but rather that it is inadequate. In the lack of an instrument for changes in the chosen insolvency regime, the contracting scheme typically will select the applicable rule long before they get involved in transnational activities.
One would usually expect that a corporation exercising the selection at the time of incorporation would choose home regime. In lack a mechanism for changes in the selected insolvency system, the contracting scheme will normally lead to outcomes similar to a universalist scheme, because corporations normally will select the applicable system long before they get involved in cross-border business.
2.4.3. Corporate Groups
One more issue of significance is Corporate Groups. Their existence complicates the issues more. It is correct under either territorialism or universalism. Under universalism, the risk is that creditors ought to take into account the way in which the home country of a parent company will handle the group. If the subsidiary will be recognised as part of the group and, therefore, brought into insolvency in the parent’s home country, the insolvency law of that country will have to be taken into account.
Conversely, if the subsidiary will be dealt as an autonomous entity, the insolvency regulations of the home country of the subsidiary are the relevant one. Naturally, this complicates the study facing an adjusting creditor, and raises the distortion caused by weakly non-adjusting creditors. Territorialism offers creditors with certainty inasmuch as creditors can be convinced that local law will administer the distribution of home assets.
What territorialism cannot offer, however, is any assurance regarding the amount of share of group’s assets that will be in their control at the time of filing, or practical device for reorganisations. The existence of corporate groups also worsens the difficulty of restructuring because effective restructuring may require jurisdiction over several independently incorporated members of the group. It is vital to note, however, that this results not as of the existence of a universalistic system, but rather from the presence of corporate groups. Under a universalist system, the presence of corporate groups makes restructuring rather more difficult but still possible. Under a territorialist regime, however, restructuring is almost not possible.
2.4.4. Forum shopping
There is also the danger of forum shopping, which presents a grave difficulty for territorialism as, under that regime, it can be accomplished merely by transferring assets from one country to another. In other words to discourage forum shopping, a universalist system must prevent identifying the home jurisdiction based on effortlessly changeable criteria, such as the location of where the corporation was incorporated.
The most admired and influential of point of views that have been presented in support territorialism has been a call to the plight of local creditors. If local creditors are adjusting creditors, however, they plainly are not better off under territorialism. The discussion above reveals that the effectiveness arguments for universalism stay strong even in the presence of non-adjusting creditors. even though universalism amplifies the risk-based distortion in borrowing by non-adjusting creditors, the scale of effect is almost definitely small. Furthermore, territorialism has its own method of aggravating to distortion by escalating the number of non-adjusting creditors.
Thus, even if one looks only at the consequences for non-adjusting creditors, territorialism cannot be publicized as better approach. If one looks more generally at the matter of transnational insolvencies, taking into consideration factors such as the informational needs of each system and the effect of each on restructuring, it becomes apparent that the case for territorialism is weak.
2.5. Cooperation Philosophies
The realistic approach frequently displayed in the administration of insolvencies has led some academics to attempt a categorization of the ways of resolution by reference to the philosophies noted above. Professor Westbrook has distinguished that practice usually falls into two different forms: “secondary bankruptcies” or “modified universality.” Both of these ways amend the territorialism principles by permitting a single judicial medium to access other courts willing to co-operate in order to safeguard and handle assets belonging to the debtor for the overall benefit of everybody involved insolvency.
2.5.1. Ancillary insolvency proceedings
In ancillary practice, authority may hand out local assets to home creditors according to the priority scheme in force in that country. The excess from distribution would be submitted to main jurisdiction for allotment in accordance with its priority system, which may be different in emphasis or content.
Illustrations of this approach may be seen in a number of conventions concluded in the 1990s, where the function of courts is divided by their being categorized into main or ancillary jurisdictions. Analysts note the obvious inconsistency in this strategy by pointing to the effect of such a system in efficiently maintaining a “grab-rule” for the advantage of local creditors whereas paying insincerity to the idea of centralised management of insolvency.
2.5.2. The modified universality and internationalist principle
In the “modified universality” standard, authorities recognize the fact that a single court ought to run the insolvency and tender such co-operation as they are able to furnish, allowing for the needs for reciprocity and procedural justice in the handling of creditors overall. The requirements of home creditors may still form the part of the considerations where it is intended that effect be given to orders by the single court in other jurisdictions, thus asserting some domestic control attuned with the overall co-operation agenda.
Professor Fletcher asserts that in effect this approach can favour the active prevalent adherence to the territorialism regime by requiring co-ordination to the level that the suitable result is that the universality principle is accomplished de facto. The “Internationalist principle” he finds is also predicated on the embracing of the modified universality standard as well as the recognition by jurisdictions of the need for a combined response to global insolvencies. This will take place through the development of regulations of private international law in light of cross-border business activities and the recognition of familiar and flexible doctrines to control the administration of such cases.
2.6. Judicial and Legislative Involvement
Promoters of a way out to the problem of global insolvencies also look to reconciling the disparities between the approvals of either a rigid territorialism or universality standard. There are two important types of sensible solutions that may be thought of. The first, at the national level, requires appreciation by the courts of the interest of facilitating the management of the debtor’s assets through co-operative actions. The second prevents the problems that may be produced by the uncooperative domestic legislation by looking to the manufacture of supranational mechanisms, whose negotiation will involve jurisdictions assenting to common doctrines of co-operation and structure for settling disagreements.
3. National and International Rules
There have been numerous efforts both at domestic and global levels. However, to include them all in this paper is beyond the scope of this paper. For the purpose of making assessment as to United Kingdoms approach to cross-border insolvency proceedings, only the efforts that have been made part of its rules on international insolvencies will be considered. As result of recent insolvency law provisions brought into action, there are now three systems for dealing with cross-border insolvencies in the United Kingdom. They are section 426 of the Insolvency Act 1986, the European Regulation on Insolvency Proceedings 2000 and the UNCITRAL Model Law on Cross-Border Insolvency 1997.
3.1.1. Section 426
Section 426 of the Insolvency Act 1986, can be tracked down to 19th century requirements on implementation of orders set by courts within the United Kingdom and a obligation of support to and by other British courts, a definition of which was extended to numerous courts in the then British realm (later Commonwealth). Prior to1986, the Bankruptcy Act 1914 applied exclusively to the bankruptcy of individuals and partnerships.
The stipulations of this Act were planned to co-ordinate proceedings and facilitate the courts inside the Commonwealth to demand other courts to support in the administration of bankruptcy proceedings inside their own jurisdiction, the production of an order being regarded adequate authority to allow the other court to employ the jurisdiction it would if the issue was before it for reflection. Section 426 now relates to both types of insolvencies. Comments in the Cork Report in its section on cross border side of insolvency law offer some of the analysis for this stance.
The report notes the aim of extra-territorial authority as being the prevention of clash and misconstruction in cases of parallel jurisdiction, the finding recognition and implementation by other courts of orders plus reciprocity in acknowledgment and execution where this would not be revolting to domestic notion of public policy. It was considered necessary, according to the report, that this support should include the state of corporate insolvency and be extended as far as possible to other jurisdiction on the basis of reciprocity.
In section 426, the courts having authority in relation to insolvency law in one part of the United Kingdom shall support the courts having the equivalent jurisdiction in another part of he united kingdom or any related country or region.
3.1.2. The European Regulation
The European Regulation on Insolvency Proceedings 2000 is the inheritor text to the European Insolvency Convention 1995, a scheme that commenced in the early 1960s and which stemmed partly from the efforts leading to the outcome of the Brussels convention 1968, whose Article 1 bars insolvency issues from its concern. A new motion seems to have been given by the launch of a scheme by the Council of Europe which ultimately resulted in a text later embraced as the Istanbul Convention 1990.
Nevertheless, due to various political concerns it never came into force. the insolvency Regulation, which recharged this project with no major modification to its provisions, was adopted after a scheme co-authorised by Germany and Finland in 1999 and applies to insolvencies with a transnational factor where the debtor in question has its “centre of main interests” within the area of the European Union. Insolvency Regulation offers rules for allocation of jurisdiction in cross-border issues, for solution to conflict of laws, for the acknowledgment and implementation of judgements as well as for harmonization between proceedings that are started.
The regulation on EC Regulation 1346/2000 (insolvency proceedings) came into force on May 31, 2002. Article 46 states that no later than June 1, 2012 and every five years after that, the Commission shall give to the European Parliament, the council and the Economic and Social Committee, account of the application of the Regulation. The report is to be supplemented, if need be, by suggestions for revision of the Regulation. Even though we are nowhere close to 2012, thought is already being given to likely alteration to the Regulation.
Such modifications would need additional Regulation. This may be contrasted with the Art. 45 practice for amending the annexes by way of a verdict of a eligible majority of the Council, on the proposal of one of its members or on an initiative from the commission. A final dialogue draft of a European community text was created in 1994, which offered the basis for the text that the council of Ministers were to agree on in 1995 as the European Insolvency Convention.
3.1.3. Model Law
On April 4, 2006 the UNCITRAL Model Law on Cross-Border Insolvency was brought into force in Great Britain by means of the Cross-border Insolvency Regulation 2006 (SI 2006/1030). The provisions, made under authority granted by s.14 of the insolvency Act 2000, have force all over England, Wales and Scotland (reg.2 (1)), but it is likely that actions will be taken soon to extend the Model Law’s application to Northern Ireland.
UN Commission on International Trade Law embraced the Model Law itself as earlier as May 1997. In spite of the widespread political and businesses support for the legislation of the Model Law in the UK, between 2000 and 2005 precedence was given to other things such as getting ready the EU Regulation on Insolvency Proceedings in May 2002 to enter into force, and the execution of the key reforms to corporate and personal bankruptcy brought about by the Enterprise Act 2002.
The Model Law has four main parts laying the scope of the Model Law itself and regulations for access by representatives of overseas insolvency proceedings, together with those handling of foreign creditors and, most notably, regulations for assistance and for harmonization of concurrent proceeding in numerous jurisdiction over the same debtor. The text symbolizes essentially a settlement between dissimilar legislative customs and is comes with by a Guide to Enactment, which was made in order to help legislative draftsmen in accustoming the Model Law to local environment. From a slow start, the Model Law has become considerably popular and some major trading countries have adopted or initiated the process of adopting the text.
3.2. Rules in Operation
3.2.1. The Common Law Approach
Just when regulations are being introduced around the globe to cope with cross-border insolvency, the Privy Council in Cambridge Gas Transport Corporation v Official Committee of Unsecured Creditors of Navigator Holdings (‘Navigator’) notifies that the common law still is important and competent of progress.
In summary, the privy council held that the Isle of Man court, having recognised a US Chapter 11 proceeding, had a wide discretion to help in the execution of that Chapter 11 plan, notwithstanding that this involved the relocation of shares in an Isle of Man company. While the will of cooperation demonstrated by the Privy Council is praiseworthy, its methodology seems novel and may have important implications for the administration of cross-border insolvencies and for the law in general.
Without going into much detail, a group of companies Isle of Man companies went into Voluntary Chapter 11 proceedings in the US. The court in New York ordered the group’s assets to be handed over to the creditors. As assets were ultimately owned by a Manx parent company (‘Holdings’), the Chapter 11 plan intended to vest the shares in Holdings in the creditors’ representatives. This would permit the creditors to manipulate the underlying assets and put into practice the plan for restructuring.
Later, the Manx High Court of Justice was asked by New York court for this purpose. This was protested to by a shareholder of Holdings, Cambridge Gas Transport Corporation (‘Cambridge’), a Cayman Company, on the grounds that the New York court not impinge on its rights of property in Manx shares as Cambridge had itself never gave in to the personal control of the New York Court. An Order of that court could not therefore affect its rights of property in shares in Isle of Man.
Having thrived in the Manx High Court and lost in Manx Court of Appeal, Cambridge appealed to the Privy Council. However, the Privy Council turned down its appeal. Cambridge reasoned that New York order was either a judgement in rem or in personam. If it was in rem, then as everybody consents, it could not amend the title to shares in the Isle of Man. conversely, if it was in personam, it was only obligatory upon persons above whom the New York court had authority. The fact that Holdings had submitted to the jurisdiction was beside the point.
Arguments by Cambridge as to the rules of private international law about the recognition and enforcement of judgements in rem and in personam are correct. But their Lordships believe that insolvency proceedings do not fall into either class. Judgements in rem and in personam are juridical verification of the existence of rights. nonetheless, the function of insolvency proceedings is not to establish the existence of rights, but to offer means for collective execution against the assets of the debtor by creditors whose rights are recognized.
Companies who have become insolvent carry on to be the holder of its property but holds it in confidence for the creditors in accordance with the rules of the Insolvency Act 1986: see Ayerst v C & K (Construction). The point is that insolvency is a combined proceeding to put into effect the rights and not to ascertain them. certainly, as brightman LJ pointed out in In re Lines Bros Ltd, it may be necessary in insolvency proceedings to ascertain rights, which are challenged.
The common law has been conventionally occupied with the view that fairness between creditors needs that, preferably, insolvency proceedings ought to have universal purpose. There should be a single insolvency where all creditors are allowed and required to establish their rights.
Universal application of insolvency proceedings has long been an ambition, if not at all times fully attained, of United Kingdom law. The core belief of universality is given effect by recognising the person who is authorized under the foreign insolvency law to operate on behalf of the insolvent corporation as allowed to do so in England. Their Lordships regard that these principles are adequate to confer upon the Manx court authority to help the committee of creditor, as chosen representatives under Chapter 11 order, to achieve the plan of reorganisation.
As there is no submission of injustice to any creditor in the Isle of Man or local law which may be breached, there can be no discretionary reason for restriction of such support… though it must be acknowledged that Cambridge did not officially submit to the authorities in New York, it had no financial interest in the proceedings and sufficient opportunity to take part if it wanted to do so. It would for that reason not be unjust for the scheme to be put into effect.
In giving support to the New York court, the Privy Council backed the theory of universalism that insolvency proceedings initiated in one country should have universal function. This would evade the need for concurrent insolvency proceedings. Recognising the overseas proceeding should necessitate granting the foreign representatives remedies to which they would have been entitled if alike proceedings had taken place in the national forum.
The model of universalism accepted in Navigator is not without any problems in its own terms. Generally speaking, universalism takes the vision that all insolvency assets and claims should be managed in the debtor’s ‘home country’ under the regulations of that state. However there is no suggestion that the Privy Council considered the United States as Holding’s home country. As there was no debate or verdict that Holdings’ centre of main interest was in the United States.
So the model of universalism adopted by the Privy Council does not emerge as the model advocated by the traditional universalists. Thus, it is debatable if the ideal of universalism is capable of providing any realistic assistance when one is looking for the court’s support in matters of cross-border insolvency. It is suggested that, unlike ideal universalism, what is essential is the growth of the regulations on recognition of foreign decrees.
3.2.2. Efforts by UNCITRAL
The UNCITRAL Model Law is a response to the several global insolvencies that happened in the early 1990s as well as the insufficiencies exhibited by attempting to deal with any one of those procedures under the laws of a single state without proper recognition measures being in place. The inconveniences did not arise so much from states’ variations of applicability of fundamental insolvency doctrine as from the inability to have concurrent trans-frontier recognition of the existence of insolvency principles and the selection of the Insolvency Practitioner controlling the assets and claims in such a procedure on global basis.
Thus, it can be said that these projected administrative and purposeful trade Model Laws have realism as their base rather than legal notions. The aim of the Model Law is to facilitate the recognition of foreign insolvency proceedings by offering standard for, insofar as possible, the process by which recognition of such proceedings is attained and the effect in law of recognition once granted. It does not seek to harmonise insolvency law in other areas or the substantive rights of creditors. It is mainly aimed at resolving four apparent weaknesses that are present in relation to transnational insolvencies. These are:
- The lack of predictability as to which country and which law ought to govern a particular issues;
- The lack of notification to foreign creditors of insolvency proceedings;
- Inappropriate multiple proceedings instigating due to lack of cooperation amongst courts; and
- Tendency of courts to prefer local creditors over foreign creditors.
In UK the Model Law has been outshined by the legislation of European Regulation on Insolvency Proceedings EC1346/2000 (EUIR)
126.96.36.199 Scope of the Model Law
Foreign proceedings are defined by article 2 as follows:
“Foreign proceedings” means a collective judicial or administrative proceeding in a foreign state, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purposes of reorganisation or liquidation.
Since it will only have an effect on ‘collective’ insolvency proceedings, receivership, for instance, would be not within their scope. A number of other entities are purposely excluded from the scope of the Model Law under art 1(2). These are
- Water corporations
- Railways corporations
- Air traffic services corporations
- Public-private partnerships
- UK and third county credit institutions
- EEA and domestic insurance and reinsurance corporations; and
- Channel Tunnel concessionaires
These are all entities that have a principally strategic significance and to which special insolvency and/or existing cross-border schemes apply.
188.8.131.52. Limitations of Model Law
It is imperative to comprehend two restrictions of the Model Law. Firstly, in the provisions of the Model Law’s scope, it is not intended and does not endeavour to harmonise substantive insolvency laws. Secondly, the provisions of the Model Law are very general in nature, which leaves much flexibility to courts to construe its provisions if questions are asked. The regulation provide that some UNCITRAL operational documents, as well as a guide to enactment relating to the Model Law published by UNCITRAL in May 1997, are to be used by the courts to construe the provisions of the Model Law.
184.108.40.206. Application of Regulation
The Regulations and the Model Law obviously work together with other sources of insolvency law. The Regulations handle such interactions as follows.
- Regulation 3(2) states: ‘In the case of any conflict between any provision of British insolvency law or of Part 3 of the Insolvency Act 1986 and the provisions of these Regulations, the latter shall prevail.’ This offers precedence to Model Law over national insolvency laws where there is a conflict.
- Article 3 of the Model Law provides that to the extent that the Model Law comes in conflict with United Kingdom obligation under Council Regulation (EC) No 1346/2000 of 29 May 2000 on Insolvency Proceedings, the requirements of the EC Insolvency Regulation take preference. Nonetheless, it is presumed that the instances where Model Law and EC Insolvency Regulation will come into conflict will be few.
220.127.116.11. Consequence on Creditors’ rights
When there is a foreign main proceeding, article 20 imposes an automatic stay that is same as which applies whenever a corporation is wound up under the Insolvency Act 1986. This automatic stay is partial and does not frustrates:
- The enforcement of security;
- The taking of goods under a lease or hire purchase contracts; and
- The capability to enforce a right of set-off against the debtor.
There is no automatic stay in relation to foreign non-main proceedings.
According to article 1 (4) no relief may be granted which would hinder in anyway with rights granted to holders of financial collateral pursuant to the following:
- Part 7 Companies Act 1989 (Financial markets and Insolvency);
- Part 3 of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999; and
- The Financial Collateral Arrangements (No.2) Regulations 2003.
18.104.22.168. Foreign official’s rights
According to Art. 9 foreign officials in any insolvency proceedings have rights of direct access to domestic courts.
Article 10 states that the only fact that an submission pursuant to the Model Law is made to a court in Great Britain by a foreign official does not put the foreign official, or the overseas assets of the debtor, to the jurisdiction of the courts of the Great Britain or any part of it for any use other than the application.
Article 11 grants authority to foreign officials appointed in overseas proceeding to apply to instigate proceedings under British insolvency law, if the circumstances for instigation of such a proceedings are otherwise met. Schedules 2 and 3 of the regulations include thorough provisions and forms, which are necessary for the application for the recognition.
In brief, the application needs to be assisted by an sworn statement that gives particulars of the foreign insolvency proceedings, any steps being taken in association with any rescheduling of the liabilities of the debtor and other appropriate details. Submissions under the Model Law will be dealt with by the expert Chancery District Registries and the High Court, Chancery Division in London.
22.214.171.124. Automatic stay
The automatic stay that operates under art 20 applies only upon the recognition of a foreign main proceeding.
1. Upon recognition of a foreign proceeding that is a foreign main proceeding, subject to Para 2 of this article –
- commencement or continuation of individual actions or individual proceedings concerning the debtor’s assets, rights, obligations or liabilities is stayed; and
- execution against the debtor’s assets stayed; and
- the right to transfer, encumber or otherwise dispose of any assets of the debtor is suspended.
- The stay and suspension referred to in Para 1 of this article shall be—
- the same in scope and effect as if the debtor, in the case of an individual, had been adjudged bankrupt under the Insolvency Act 1986 or had his estate sequestrated under the Bankruptcy (Scotland) Act 1985, or, in the case of a debtor other than an individual, had been made the subject of a winding-up order under the Insolvency Act 1986; and
- Subject to the same powers of the courts and the prohibitions, limitations, exceptions and conditions as would apply under the law of the UK in such a case, and the provisions of Para 1 of this article shall be interpreted accordingly.’
If the proceedings are of the character of a rescue or restructuring the stay that is imposed automatically could be extended but only if the foreign officials applied for additional discretionary relief under art 21 of the Model Law. If the proceedings are non-main then there is no automatic stay granted and the foreign officials will have to submit an application for all relief under art 21.
In addition to these, foreign representative under article 19 can submit an application to court for temporary relief upon the filling of an submission for recognition but before it is dealt with. It comes useful in cases of urgency where the trial for the application of recognition is at a later date; the foreign officials could use rights under art 19 to get stay, for instance.
126.96.36.199. Discretionary relief
The court on a submission under art 21 may permit the following types of discretionary relieves:
- Stay of proceedings over debtor assets;
- Suspension of the right to transfer debtor assets;
- Examination of witnesses in relation to the debtor business;
- Entrusting the administration debtor’s assets located in the UK to foreign officials or another designated person as appointed by court; and
- Offering any additional relief that court would be able to give officials in domestic insolvency proceedings including the placement of a moratorium like the which would placed in an administration of a company under Para 43 of Sch B1 of the Insolvency Act 1986.
188.8.131.52. Antecedent Transactions
It is provided by the Insolvency Act 1986 that certain business deals taking place within a particular time periods can be set aside for the advantage of creditors in general under certain circumstances.
Those provisions are as follows;
- Section 238 – where a transaction at an under value is entered into by the debtor within two years of the onset of the insolvency;
- Section 239 – where a transaction confers a preference on a creditor within the six months prior to the start of the insolvency (and two years if the transaction is with a connected party);
- Section 245 – where floating charges taken within one year of the start of insolvency may be wholly or partially invalidated save for value given at or after their creation.
Model Law permits for foreign officials to bring claims under these and other similar rules.
For calculating the vulnerability of a business deal (etc), the date on which the overseas insolvency proceedings instigated is basis and article 238 applies only to transactions (etc) entered into on or after 4 April 2006.
In order to do well in such claims, the foreign officials will have to prove his claims as a matter of English law rather than under the foreign law where the original foreign proceedings started.
3.2.3. The European Model
The jurisdiction paradigm in the unsuccessful European Insolvency Convention 1995, later came into the European Insolvency Regulations, is similarly predicated on spotting the debtor’s centre of main interests and allows the existence of main and secondary proceedings. Taking the collaboration concept further, the co-ordination of proceedings taking place in parallel is stated by the European Insolvency Regulation as being a sine qua no for the well-organized realisation of assets and consequent distribution to creditors.
The main requirement for achieving suitable co-ordination of proceedings associates to the obligation on all liquidators to co-operate closely. Particularly, this is to be effected through frequent association for the purpose of exchanging any significant information relating to the behaviour and development of proceedings as well as keeping other liquidators appropriately apprised of vital steps taken as a result of proceedings. The necessity of co-ordination does not rule out the pre-eminence enjoyed by the liquidator performing in the context of primary proceedings.
This pre-eminence warranted by giving the liquidator powers to interfere in secondary proceedings, as well as applying for the opening of such proceedings, recommending a reorganization plan or composition or applying for suspension of the process by which assets in secondary proceedings are realised. The European Insolvency Regulation offers mutual assistance between the people administrating the main and secondary insolvencies by three methods.
First, there is approval for the shared communication of information; secondly, there is a obligation on liquidators in all proceedings to collaborate; and thirdly, there is authority given to the liquidator in main proceedings to give recommendations for the use of assets in secondary proceedings. There is also a additional duty to correspond obligatory on the court of any Member State in which proceedings are taking place to notify, by way of notice, any known creditors inhabitant in other Member States of the existence of proceedings and the procedure and provisions by which debts must be proved.
So far as the duty to communicate is concerned, the Virgos-Schmit Report states the attractiveness of this provision in light of the need to ensure the “smooth course of operations” in proceedings that are “interdependent” in character. This is geared towards the ease of creditors who may have a benefit in participating in numerous proceedings.
Apart from one specific restriction on the duty, related to the requirement to respect national laws on data exchange or the protection of computerised data, the extent of the duty is widely defined in a non-exhaustive list by the Virgos-Schmit report to include the swap over of information in relation to assets, recovery and transactional avoidance proceedings, offers for and sales of assets as part of the insolvency process, the existence of claims against the debtor, the proving of amount overdue and admission of claims, the consequential status of creditors, any devices for distributions of proceeds and dividends as well as any rescue plans. In addition, the exchange of information is to take place in the widest meaning in allowing for communication to involved parties of the development of proceedings.
The common obligation is laid on all insolvency practitioners subject to Art. 31 and is supplemented by a further obligation to co-operate with any other practitioners performing in the context of other proceedings concerning the same debtor with a view to their acting in concert so as to co-ordinate proceedings for the advantage of the members and to assist in the progress of proceedings. This reflects the substance of the preamble to the European Insolvency Regulation that speaks of affects the effectiveness and the efficiency of proceedings in need of co-ordination as a way of ensuring that measures affecting the same debtor attain the best possible result.
It is appealing to note here that the co-ordination role is positively endorsed by the European Insolvency Regulation to the practitioners and not to the courts, who nevertheless hold on to a supervisory role and may, in any event provide communication and co-operate wherever states’ legislation permits this. It should be distinguished that the imposition of obligation to co-operate here does not mandate any explicit means as to how cooperation ought to occur.
3.2.4 European Corporate Groups
The deficiency of particular rules for groups of corporations in the European Regulation has led openly to a rivalry for jurisdiction seen in cases such as Parmalat. The dispute in this area is not over yet, although it currently embraces another method of short-circuiting the Insolvency Regulation seen in cases such as Collins & Aikman Europe SA, Re, where a mindful effort is made at avoiding secondary proceedings through convincing creditors that their welfare will be adequately watched over through the synergy obtained by restricting proceedings to a single set of proceedings.
In addition, recent cases of pan-European group of companies’ insolvencies reveal the benefit in placing multinational corporate groups under insolvency in a particular location, effectively subjected to a single administration and single insolvency system. This is predominantly positive for global reorganization and for improved results in realisations of assets and is in particular appropriate when the group formed a single business or when ingredient companies had significant inter-relations.
Centralising the insolvency process like this holds the potential saving of such transnational companies groups in full, rather than splitting it up into a range of assets. Additionally, this may also reduce the general costs, as there is no necessity for having a mess of different cases in different countries, thus resulting in enhanced returns to creditors.
However, ascribed to the lack of rules for dealing with associated companies,the European Union Regulation only offers incomplete and indirect means for attaining centralisation of the insolvency process. at first, this is only realistic when all corporations concerned have their centre of main interests in the same state.
Otherwise, if related companies concerned have their centre of main interests in numerous countries, then under the EU Regulation it is unworkable to manage their insolvencies from a single place and the proceedings are then managed separately. In fact, even in the case that all centre of main interests are located within same borders, the proceedings are still split in the sense that administration orders are delivered for each corporation, hence producing a sort of “local” yet parallel insolvency proceedings.
Therefore, it is advantageous to encourage a centralised approach to insolvencies within multinational corporate groups, most vitally in the sense that the insolvency system will have the means of taking into account the complete group as a whole rather than taking at each part separately. Somewhat major reflection would be the way the group was operated and the inter-relations among its components.
As a result, the advantages of centralisation could be achieved and realised in a economical and expected way and will not need to rely on a more “random” consequence of having all centre of main interests of the ingredient companies situated in a single place. accordingly, connected companies maybe concurrent in the course of their insolvency and preferably their insolvency process will be handled jointly in a single forum and under a single legal system.
However, such centralisation is not inevitably suitable for every case of insolvency within multinational corporate groups. Indeed, it was not a sheer twist of fate that demonstrated that centralisation to be so advantageous. It is advantageous as the insolvent multinational corporate groups were capable to benefit from a global reorganization or centralised realisation of assets.
Normally, this would not be the case when the multinational corporate groups do no form a single kind of trade or when its entities are not interconnected. for this reason, a precondition for applying a centralised approach to insolvencies within multinational corporate groups is that the particular group was an incorporated one prior to its collapse. More than this though, a essential feature of such a centralised approach relates to the way its application accords with fairness factors and creditors’ expectations of return, which are key concerns of an insolvency regime.
It is a vast topic and a very important one as well, however the space does not permit to write a detailed note on its major aspects. Nonetheless, it can be said that centralised approach to insolvencies within MCGs (multinational corporate groups) is, principally, for the benefit of the creditors involved with a group. Nonetheless, this conclusion rest on providing ample tools and protective methods to warrant that creditors’ voices are heard, that they are satisfactorily represented in the process, and that a resolution, which is well-suited to the specific situation, is imposed.
Concerns such as mistreatment within the group or intermingling of assets and debts among entities will have intense consequences on creditors’ rights of equal distribution from the insolvent estate. The way to a well-suited international approach to insolvency within multinational corporate groups ought to pass through these points too. For the time being lets bond with the perception that a centralised approach could definitely turn out to be a creditors’ desire.
4. Conflicts Between Rules and Summary
4.1.1. Conflicts between rules
Mostly, it is possible that two sets of rules could have concurrent application. A three-way clash is likely, but would need the expansion of section 426 to member states of European Union that also implement the model law, a suggestion that is doubtful. Therefore, the three possible situations of clash are drawn here.
184.108.40.206. Section 426 and Insolvency Regulation
Countries that get affected by the conflicts under this head of rules here are Gibraltar and Ireland. It is improbable that section 426 will have effect on other Commonwealth countries that are members of European Union, Cyprus and Malta, and even more improbable that any of the other member states will ask for expansion to them by statutory instrument. The problem, therefore, for those countries that can come in conflict on insolvency regulations is of priority.
The answer is in fact given by Article 10 of EC Treaty, which expects member states to take all feasible measures to guarantee discharge of the obligations they have entered into under the treaty, in a way setting out a code of conduct in the welfare of the Community and directly strengthening the supreme status of European Legal instruments over domestic ones.
In principle, it may be that both section 426 and the Insolvency Regulation could be used in a harmonizing way, subject to the evading of conflict, it being probable that the more broad and less definite wording of the former provision could give more leeway to a court, given that it has been held that the meaning of insolvency contained in section 426 should be given as wide an interpretation as probable so as not to restrain the exercise of the court’s unbiased discretion. The Insolvency Regulation is, however, articulated so as not to apply in any member state to the point it would be unable to get along with external obligations entered into before the Insolvency Regulation comes into force.
220.127.116.11. Insolvency Regulation and Model Law
Currently, along United Kingdom, the Only European Union member states to have adopted the Model Law are Poland and Romania. This situation may well change in future years for numerous reasons, specifically that the Model Law is growing in reputation and stands to be adopted by several states with which European Union states have key trading links, thus prompting them in turn to think about its use.
It is relatively perceivable that European text and Model Law can come in clash on same issues. In United Kingdom, an explicit provision has been made in the statutory instrument incorporating the Model Law that guarantees superiority of Insolvency Regulation inside EU..
A reminder of the heredity of the Model Law comes in the British text incorporating it and the interpretation section, which calls for ‘regard to its international origin and to need to promote uniformity in its application’ with, in addition, good faith in its use. As Model Law resorts from efforts carried out at the global level and the compromise achieved by UNCITRAL as to its contents.
To that level, measure may be said to mirror cross-border insolvency law and doctrine given effect through reception into domestic legal system in the same way as the insolvency law represents an agreement at European level of principles that are then given direct and automatic effect through endorsement in regulation form.
The question this brings to surface is whether the European text has to be dominant if it represents a different consensus to the international text. Professor Virgos agrees that the Model Law corresponds to a ‘genuine international standard’ in insolvency matters. He regards that there is no risk of incompatibility or clash among the texts known that it is not an international truce in the strict sense, but a text given effect via domestic law. however, there are disparities between the texts, for instance the conflict of laws rules deficient in the Model Law and the dissimilar formulation of the co-operation paradigm in Article 31 of the Insolvency Regulation and Part IV of the Model Law.
In addition, it is likely that the co-ordination of a group insolvency begun outside the European Union with idea of jurisdiction to open main proceedings and demanding a European court to start non-main proceedings may come into clash with an alleged exercise of jurisdiction by a different European court asserting power to open main proceedings. There would be a clear-cut clash here with the question on which court the obligation to conduct ancillary proceedings would be owed.
18.104.22.168. Section 426 and Model Law
This last area of conflict of rules includes for now only two jurisdictions of South Africa and British Virgin Islands. This situation will change rapidly known the curiosity shown by Australia, Canada and New Zealand in the Model Law and likely forthcoming enactment. The Guide to Enactment expressly states that the extent of the Model Law is restricted to certain procedural features of transnational insolvency law and is intended to be used as an ‘integral part of the existing insolvency law’ of the state implementing its regulations.
To that point, the readiness to evade clash may be seen. However, in the circumstances of conflict, a conflict solution provision is endorsed in the statutory device adopting it, which offers not only that British insolvency law is considered as being modified to the extent required to give effect to the Model Law, but that any disagreement between domestic and the rules set up by the statutory instrument will be decided in favour of the Model Law.
Nonetheless, the Model Law provisions are not themselves considered as preventing the courts or insolvency officials from offering support to a foreign court or representative in other jurisdictions. This would undoubtedly consist of the conventional rules at common law formed by the courts before the arrival of the statutory co-operation rule.
This recommends a conscious effort here to make sure that the Model Law and domestic regulations, including the section 426 paradigm, are utilized in as resourceful way as possible. However, there are bound to be differences, including in the transaction avoidance provisions and assistance paradigms, not to point out the extensive exclusion of a significant number of debtors, which leaves exposed in various instances the temptation of continual resort to the section 426 co-operation structure.
This dissertation is about the laws, both domestic and international, affecting United Kingdoms’ position in relation to insolvencies with cross-border elements. The major issues or differences, which make such insolvencies peculiar, are the diversity in laws of different jurisdictions involved and, unlike national corporations, the widespread operations of multinational corporations. As corporations began to cross borders and started to exploit resources available in other countries, it was inevitable that some will fail.
Such failures along with classic risks of found in any business were supplemented by variety of other risks, as one can expect, for example, risks involved with dealing with businesses following different set of rules, political situations of other jurisdiction, language barrier and awareness of the local customs are some of the challenges encountered transnational businesses. The way jurisdictions deal with insolvencies matters, such as handling of foreign creditors, transferring of assets etc reflects as to which school of thought a particular jurisdictions abides to.
Two schools of thoughts exist, i.e. territorialism and universalism. Territorialism is the conventional philosophy and is praised for affording protection to local creditors. On the other hand, universalism is a more realistic vision when it comes to cross-border insolvencies as it offers protection to all creditors regardless of their country of origin. Several issues relating to both theories are examined and criticisms have been analysed, even the fundamental argument raised by supporters of territorialism that local creditors are better off under it has been considerably challenged.
Further, the risk of forum shopping and issues emanating from the handling of corporate groups have been elaborated in light of these theories. As universalism and territorialism are two theories at opposite ends from each other, the work-able mechanism to deal insolvencies with cross-border elements, effectively, has to find itself somewhere in between these theories. Therefore, two such compromises have been put forward i.e. “Ancillary insolvency proceedings” and “The modified universality and internationalist principle”. Having established the philosophies and theories prevailing over the subject of cross-border insolvencies, this paper concentrates on regulations that operate in this area and to what extent they have been successful.
As desired by the author to limit the scope of this article and focus on rules that affect United Kingdom position in relation to cross-border insolvencies, three major enactments have been considered. Namely, section 426, the European Regulation and the UNCITRALs’ Model Law. Purposefully, more effort has been made to consider international regulations in more detail rather than domestic rules, so that a clear understanding of recent international obligations put on United Kingdom can be made.
Nonetheless, both domestic and international regulations affecting multinational corporations are of vital significance and appropriate weight, in the light this paper, has been awarded to all major aspects. After considering such rules, a hierarchy of rules is established by considering the likely scenarios of conflict between them and to ascertain which body of rules will have preference over the other when it there is a conflict.
As important is the study of the field of cross-border insolvencies, it is equally vast and complex. There has been various unsuccessful attempts in past to establish international system to deal with multinational corporate failures. Mainly due to level of compromise required from states and the requirement of departure from its traditional method of dealing cross-border insolvencies. The traditional method is supported by the theory of territorialism protecting local creditors and maximizing return for them.
However, as multinational corporations are at increase on a much faster than ever before, there has been a lot of instances to realise that ultimately universalism offers a better solution to foreign as well as local creditors, it reduces cost, makes reorganization of multinational corporations all more likely and creates certainty on the expected return thus keeping encouraging creditors to offer loans at much lower rate of interest. The efforts that have been focus of this paper are relatively recent ones and are under constant observation of legislators, businessmen and other related professionals.
Further, there have been several calls for their review and amendment. The major flaw in UNCITRALs’ Model Law is its very nature. Model Law terms are very general in nature and thus the desired results by UNCITRAL depend on legislative and judicial organs of the states. It is thought that such leeway in Model Law is left on purpose, so that states do not see its incorporation into their domestic laws as encroaching on their sovereignty. Perhaps it is the right thing to do at this time, too much of idealistic approach might go wrong and this could be another of unsuccessful attempts. On the other hand, the European Regulation is much more rigid in its application and does not allow much leeway as compared to Model Law.
Two key points can be made here. Firstly, European Regulation is limited in its application to European Union and secondly, surprisingly, it does not deals with the insolvencies of multinational corporate groups. Nonetheless, it covers most issues regarding corporate insolvencies effectively and can probably work as model for other countries. Apart from these, Common Law still remains important means of granting support to other jurisdiction in cross-border insolvencies.
The Navigator case mentioned above, demonstrates how English courts using Common Law rules can manipulate their meaning and go a step further in support of universalism. This paper by no means offers a comprehensive study on all aspects of cross-border insolvencies; it concentrates on major rules that affect United Kingdoms’ position in relation to such insolvencies. As much as it is wished for that universalism should prevail all over the globe, in reality, it would still take a lot of efforts and time for jurisdictions to adopt rules reflecting this theory, utilize them and ponder on them to discover flaws and straighten any if discovered. Meanwhile it is hoped that researches, such as this, would enrich the literature in the field of cross-border insolvencies that will further help those interested in this field.
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