Leiden Law Blog

III reinforces importance of court-to-court cross-border cooperation in insolvency cases

Posted on by Bob Wessels in Private Law
III reinforces importance of court-to-court cross-border cooperation in insolvency cases

In August 2017 the International Insolvency Institute (III) re-posted the ALI-III Global Principles for Cooperation in International Insolvency Cases 2012. The publication contains: 37 Global Principles for Cooperation in International Insolvency Cases, and 18 Global Guidelines for Court-to-Court Communications in International Insolvency Cases.

Together they are called the ALI-III Global Principles for Cooperation in International Insolvency Cases 2012 (in short: ALI-III Global Principles and Guidelines 2012). They are the result of a joint study commissioned by the American Law Institute (ALI) and III.

The study undertaken was conducted over a period of six years, ending in 2012, the Joint Reporters being Ian F. Fletcher and myself, professors at University College London (UK) and at the University of Leiden (the Netherlands) respectively. The 300-page supportive report demonstrates that, subject to certain necessary modifications, the essential provisions of the The American Law Institute’s Principles of Cooperation among the member states of the North American Free Trade Agreement (NAFTA, ie USA, Canada, Mexico), published in 2003, are fully capable of acceptance in jurisdictions across the world. The full text of the Final Report of the ALI-III Global Principles and Guidelines 2012 project can be found here. The Report was produced in collaboration with expert consultants (Members of ALI or III and others) representing more than 30 different countries, reflecting a wide and representative cross section of the different legal traditions and styles around the globe. These ALI-III Global Principles and Guidelines 2012 constitute a nonbinding statement, drafted in a manner to be used both in civil-law as well as common-law jurisdictions, and aim to cover all jurisdictions in the world.

In the publication posted in August 2017, the blackletter text of the ALI-III Global Principles and Guidelines 2012 is reproduced. In the Final Report (see above and also below) detailed Comments, Notes, and references pertaining to the individual Principles and Guidelines are provided.

In June 2017 the Board of Directors of III decided to republish and redistribute the ALI-III Global Principles and Guidelines 2012, being aware that developments in the regulation of cross-border court-to-court cooperation in insolvency and restructuring cases between 2012 and 2017 might give rise to confusion about the official status of the various sets of tools available for use by courts in international cases. As a background: in May 2012 the Final Report of the Global Principles project was presented for discussion at the annual meeting of the ALI in Washington DC, and was thereafter submitted for adoption at the 12th Annual Conference of III in Paris. Following unanimous adoption of the Report by III, the text was published by ALI in its series “Principles of the Law” and also on the website of III at the link given above. In furtherance of the global dissemination of the blackletter text, translations will be added to the III website as they become available.

It is particularly gratifying to note that the ALI-III Global Principles and Guidelines 2012 subsequently formed a solid basis for a set of tailored principles, published in 2015, for use under the regime of the EU Insolvency Regulation (recast) (Regulation 848/2015), which apply to insolvency proceedings opened in the European Union as of 26 June 2017. For these EU Cross-Border Insolvency Court-to-Court Cooperation Principles and Guidelines (also known as JudgeCo Principles and Guidelines) see the website of TRI Leiden. Their development was co-funded by the European Commission and III.

In Spring 2017 the JIN Guidelines were published (‘Judicial Insolvency Network Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters). The JIN Guidelines have been produced as a separate initiative by an international group of judges from ten jurisdictions, and have drawn upon the existing texts of the ALI-III Global Principles and Guidelines of 2012 and the JudgeCo Principles and Guidelines of 2015. All three texts are mentioned with approval in the Chancery Guide issued by the Chancery Division of the High Court of England and Wales in an amendment made in May 2017 relating to the conduct of cross-border insolvency cases: see Chapter 25 at paragraphs 25.30-25.32. See also the announcement dated 5 May 2017. See for an introduction my blog. As per June 2017 the JIN Guidelines have been approved by seven ‘common law’ courts, including the US Bankruptcy Court for the District of Delaware, the Commercial Court of Bermuda, the US Bankruptcy Court for the Southern District of New York and the Chancery Division of the High Court of England and Wales. The territorial reach of the JIN Guidelines is currently limited to these 10 jurisdictions.

III recommends the ALI-III Global Principles and Guidelines 2012 for use in other regions or by other states as well, and III may provide technical assistance for those states or associations of judges. This booklet provides confirmation that the international involvement of III continues to grow and contributes to the global architecture of international insolvency.

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