Cross-border insolvency and the conflict of laws

Cross-border insolvency and the conflict of laws

Cross-border insolvencies raise the spectre of more than one set of national insolvency rules being applied to regulate the treatment of the insolvent debtor’s estate, even though these rules may conflict in their content. The law of any one of these places might claim for itself a universal scope, but the effectiveness of this law abroad will depend on the way in which these proceedings are received abroad by foreign courts, applying foreign law. States have an interest in cooperating to reduce conflicts but there are a range of limitations on their ability to do so, and courts are often asked to develop the law in support of the creative efforts of stakeholders and their representatives to secure coordination  in individual cases.

This project seeks to explore the development and current state of mechanisms (both statutory and judge-made) for coordination in cross-border insolvency cases across the diverse family of common law jurisdictions, and to gauge prospects for further reform in these jurisdictions, having regard to recent UNCITRAL initiatives and to experiences in the European Union. Attention will be paid to the relationship between the approach adopted in insolvency cases and the principles of private international law that apply in related areas. The project will begin with an international conference in 2027.

Project team: the Hon. Justice Nicholas Segal, Jonathan Harris KC, Professor Michael Bridge, Professor Kristin van Zwieten