Bob Eisenbach's post at In The (Red) is a great overview of Chapter 15, the US implementation of the UNCITRAL Model Law on Cross-Border Insolvency.

As Bob says:

On October 17, 2005, as part of the Bankruptcy Abuse Prevention and Consumer Protection Act (known as "BAPCPA"), a new Chapter 15 of the Bankruptcy Code went into effect governing ancillary and other cross-border cases. (For those already familiar with ancillary proceedings, Section 304 of the Bankruptcy Code, which previously governed those proceedings, was repealed although many of its concepts have been retained in Chapter 15.)"

Chapter 15 is used:

• principally by representatives of or creditors in foreign insolvency proceedings to obtain assistance in the United States;
• by a debtor or others seeking to obtain assistance in a foreign country regarding a bankruptcy case in the United States; or
• when both a foreign proceeding and a bankruptcy case in the United States are pending with respect to the same debtor.

A really useful feature of Bob's post for those who want detailed analysis is the chart comparing Chapter 15 and the Model Law's provisions, prepared by his partner Adam Rogoff.

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Conflict of Laws .Net reports here that Look Chan Ho of Freshfields Bruckhaus Deringer has posted Navigating the Common Law Approach to Cross-Border Insolvency on SSRN.

Just when legislations are being put in place around the world to cope with cross-border insolvency (such as the implementation of the UNCITRAL Model Law on Cross-Border Insolvency), the UK Privy Council in Cambridge Gas Transport Corporation v Official Committee of Unsecured Creditors of Navigator Holdings [2006] UKPC 26; [2006] 3 WLR 689 reminds us that the common law remains essential and is capable of development.

In summary, the Privy Council held that the Isle of Man court, having recognised a US Chapter 11 proceeding, had a broad discretion to assist in the implementation of that Chapter 11 plan, notwithstanding that this involved the transfer of shares in an Isle of Man company.

While the spirit of cooperation demonstrated by the Privy Council is commendable, its approach seems novel and may have significant implications for the management of cross-border insolvencies and for the general law. This commentary reviews the Privy Councilís approach and contrasts it to an alternative approach adopted by the Canadian courts, in particular the decision of the Ontario Court of Appeal in Re Cavell Insurance Company (23 May 2006)("Cavell").

In short, Ho argues for development of the rules on recognition of foreign judgements along the lines of Cavell. In concluding that the Privy Council reached the right result for the wrong reasons, he quotes from In re SPhinX Ltd:

To rule otherwise would delay and frustrate those with the real economic stake.

and .

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