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We are pleased to announce the completion of the latest project by INSOL Europe’s Judicial Wing:

“The Relevance of the UNCITRAL Model Law on Cross Border Insolvency in the EU Member States, Albania, England & Wales.”

The 25th anniversary of the UNCITRAL Model Law on Cross-Border Insolvency (MLCBI) in 2022 made members of the Judicial Wing explore its impact on insolvency proceedings crossing borders between EU Member States in which the European Insolvency Regulation (EIR) applies, and non-EU Member States as well as Denmark, where the EIR does not apply. Generally, such proceedings are not governed by the EIR but by the local autonomous “international insolvency laws” of the involved jurisdictions.

The project analysed those autonomous laws and the types of procedures made available by them, as well as the practices of the insolvency courts in the respective jurisdictions. The analysis was focused on the recognition of foreign insolvency proceedings, the available relief in case of recognition, on judicial cooperation and assistance in cross-border insolvency cases, and on the enforcement of insolvency-related judgments.

The required information was provided by twelve members of the Judicial Wing who agreed to fill out a questionnaire with questions on the above topics. Six of them sit in countries which have adopted the MLCBI (Albania, England & Wales, Estonia, Greece, Poland, Romania), and the other six sit in countries which have not adopted the MLCBI (Bulgaria, Czech Republic, Denmark, Germany, Latvia, Spain).

The responses by the twelve judges showed that the provisions on the recognition of foreign insolvency proceedings of the autonomous “international insolvency laws” in their respective countries are not uniform but quite heterogeneous. The answers to questions on practical experience with cross-border cases made us conclude the following:

Although some of the responding judges had dealt with cross-border cases, it looks like, overall, there is not much opportunity for the insolvency courts and practitioners to deal with cross-border cases.

This means that they cannot gain much experience with the application of their local provisions governing cross-border cases, no matter whether or not they are based on the MLCBI.

To the extent that they have dealt with cross-border cases, some courts have made endeavours to develop mechanisms and identify solutions for judicial assistance and cooperation.
However, as of today, those processes are still in the stages of infancy in most civil law jurisdictions.

If you have any questions relating to this project, please feel free to contact the project coordinators, Nicoleta Mirela Năstasie and Eberhard Nietzer.

To read the complete Judicial Wing Report, download the report here.