America's new insolvency reform explained
As a new bankruptcy law comes into effect, Daniel Glosband explains how Chapter 15 brings the US closer to UN model law on cross-border cases
This article appears courtesy of International Financial Law Review
A cross-border insolvency arises whenever a debtor with assets or business activities in more than one country falls into general default on its obligations, or is in imminent danger of doing so. While there is consensus that cross-border insolvency cases are increasing in number and complexity, legal mechanisms to manage the problems intrinsic in these cases remain elusive.
This failure of most national insolvency laws to accommodate cross-border insolvency cases led the United Nations Commission on International Trade Law (Uncitral) to develop model legislation addressing the most pressing needs, and officially adopted the final draft of the Model Law on Cross-border Insolvency in May 1997.
The Model Law is spreading, with legislation adopted by Eritrea, Mexico, Montenegro, Japan, South Africa, Romania, Poland, the British Virgin Islands and, effective October 17 2005, the US. The UK has enabled the Model Law to be implemented by regulation and several countries, including Argentina and Pakistan, are considering draft legislation, while other countries, including Australia, New Zealand and Canada, have recommended adoption of such legislation. The Spanish Insolvency Act, which came in to force in 2004, includes international insolvency provisions inspired by the Model Law as well as provisions based on the EU Insolvency Regulation.