PRACTICAL ASSISTANCE AVAILABLE UNDER THE UNCITRAL MODEL LAW ON CROSS BORDER INSOLVENCY
The UNCITRAL Model Law on Cross-Border Insolvency (“the Model Law”) is not a law in its own right, rather it is a template law developed by the United Nations Commission on International Trade Law (UNCITRAL) which sets rules on the co-ordination of insolvency proceedings opened in more than one country, and the recognition of the proceeding and the person administering the proceeding. Importantly, it only has effect in those countries that have incorporated the Model Law into their own laws.
A list of the countries that have, so far, adopted the Model can be found here (http://www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model_status.html#$35287).
This Part of the chapter does not intend to give full details of the Model Law, rather it gives advice and information on those aspects of the Model Law that may particularly assist the official receiver when dealing with the affairs of a foreign national.
A full overview of the Model Law can be found in Chapter 42.
The Model Law allows the official receiver, as trustee, speedy and direct access to the courts of the countries that have implemented the Model Law [note 1], and can apply to the foreign court for recognition of the bankruptcy order in that other country [note 2] (see paragraph 43.0.35).
The effect of the recognition is that action against the assets of the bankrupt in that country are stayed or, as the case may be, cannot be commenced other than by the official receiver as trustee [note 3].
The foreign court may also grant, at the request of the official receiver, as trustee, an appropriate order to assist in the realisation of the asset(s) [note 4], and may entrust all or part of the bankrupt’s assets to the official receiver (or a person nominated by the official receiver) [note 5].
In order to obtain recognition of the bankruptcy order and obtain an order allowing action to be taken in respect of an asset (see paragraph 43.0.34) the official receiver, as trustee, must submit an application to the foreign court accompanied by a certified copy of the bankruptcy order and notice of no meeting, and a statement identifying all known insolvency proceedings in respect of the bankrupt (including foreign proceedings) [note 6].
The application should be in the language of the country in which it is to be made, and the foreign court may require a translation of the documents supplied in support of the application [note 7].
Information about translation facilities available to the official receiver can be found here (http://intranet/PSC/Communications/translation.htm).