INSOL Europe helps shape tomorrow’s insolvency laws at UNCITRAL Working Group V (Insolvency Law) 50th session

 
19 December 2016
INSOL Europe attended the 50th session of the Working Group V held in Vienna from 12 to 16 December 2016 in its capacity as an invited international non-governmental organization (“NGO”) with observer status. Other NGOs in attendance included, inter alia, the American Bar Association, INSOL International, the International Bar Association, International Insolvency Institute, IWIRC International Women’s Insolvency and Restructuring Confederation, the Law Association for Asia and the Pacific or the Union Internationale des Avocats, to name but a few.

Our INSOL Europe delegation was headed by its President Steffen Koch and also included Immediate Past President Alberto Nunez-Lagos, Rita Gismondi and Frank Tschentscher. The purpose of our attendance was to represent INSOL Europe’s views on matters where we believe that our organization has the specific insolvency expertise and unique international experience so as to help facilitate the deliberations of the Working Group at the session.

During last week’s session, the UNCITRAL Working Group focussed on two initiatives, namely:
  • A/CN.9/WG.V/WP.142 - Facilitating the cross-border insolvency of multinational enterprise groups: draft legislative provisions
  • A/CN.9/WG.V/WP.143 - Recognition and enforcement of insolvency-related judgements: draft model law
The above documents together with additional working papers (namely commentary and notes prepared by the secretariat) are available on the UNCITRAL webpage (http://www.uncitral.org/uncitral/en/commission/working_groups/5Insolvency.html).

In previous sessions, the Working Group had already identified a set of globally recognised key principles for a regime to address insolvency in the context of enterprise groups and considered a number of draft provisions, the main focus being on (a) principles of coordination and cooperation of insolvency proceedings relating to an enterprise group; (b) elements needed for the development and approval of a group insolvency solution involving multiple entities; and (c) the use of so-called “synthetic proceedings” in lieu of commencing non-main proceedings. A consolidated draft legislative text containing the identified key principles was subsequently prepared and revised draft provisions were again submitted to the Working Group by the secretariat prior to the 50th session for further consideration.

Additionally, the Commission had also approved a mandate for the Working Group V to develop a model law or model legislative provisions providing for the recognition and enforcement of insolvency-derived judgments. In previous sessions, the Working Group had agreed that such an instrument should be developed as a standalone model law (as opposed to forming part of the Model Law). A first draft of such model law was subsequently prepared and circulated to the Working Group for consideration and deliberations. That draft text had now been revised further and was to be considered at the fiftieth session.
 
The discussions on the two instruments were, by their very nature, very technical but fascinating nevertheless and lively. Our delegation participated in the discussions and shared their combined practical experience with members and also made several suggestions, all of which were welcomed by the delegates and the chair of the Working Group. Bearing in mind our participation as an NGO with observer status, we refrained from submitting proposals (which, strictly speaking, should only be submitted by members of the Commission) but instead had numerous and continued discussions with delegates during the sessions and session breaks to assist them in the decision making process.

We believe that we were very successful in getting our views across to several delegations and are looking forward to continuing the work at the next session, which is tentatively scheduled to be held in New York from 10 – 19 May 2017.
 
Frank Tschentscher