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Cross-border enforcement of insolvency judgements:
the EU and beyond
May 24, 2016
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Preparing for the Next Crash
Cross-border enforcement of insolvency judgements:
the EU and beyond
Session / Workshop Chair(s)
Patrick Rona
Michael Steinhagen
Duane Morris LLP, New York,
USA; Co-Chair Legislation
and Policy Subcommittee,
IBA Insolvency Section
Dentons Europe Oleszczuk,
Warsaw; Co-Chair,
Legislation and Policy
Subcommittee, IBA
Insolvency Section
Description
Cross-border enforcement of insolvency related judgements
raises numerous concerns and is rarely automatic. Key
controversies are over proper security of the rights of
parties in interest and the type of judgements which can be
automatically enforced. Since domestic courts take different
approaches, there is a need for harmonisation or a
convention that addresses the enforcement of judgements.
A panel of international experts will discuss recent initiatives
including contemplated amendments to the EU Insolvency
Regulation, the UNCITRAL Model Law on Insolvency and/or
the creation of a new UN Insolvency Convention.
Speakers
Prof Min Han Professor, Ewha Woman’s
University Law School, Republic
of Korea’s Delegate to
UNCITRAL Working Group V,
Seoul
Prof Alberto Mazzoni President, UNIDROIT, Professor
of Commercial Law, Catholic
University of Milan, Milan
Prof S Chandra Mohan
Gabriel Moss QC
Prof Rodrigo Rodriguez
Westin Palace
Hotel, 13:30-15:30
Associate Professor, School of
Law, Singapore Management
University, former Delegate of
Singapore to UNCITRAL
Working Group V (Insolvency
Law), Singapore
South Square, London
Federal Office of Justice,
Switzerland’s delegate to
UNCITRAL Working Group V,
Bern
Location
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Moderator
Patrick N.Z. Rona – Session Co-Chair and Moderator
Patrick N.Z. Rona is an international corporate finance and insolvency
lawyer. He works on cross-border restructurings, mergers and
acquisitions, as well as debt and equity offerings (public and private). Mr.
Rona started his legal career in emerging markets working for Baker &
McKenzie in Budapest and has worked as a CEO or CRO of distressed
companies in the U.S. and Europe. Mr. Rona is multilingual and has
worked in many jurisdictions. Early in his career, Mr. Rona served as
law clerk to the Honorable Stuart M. Bernstein and the Honorable Arthur
J. Gonzalez of the U.S. Bankruptcy Court for the Southern District of
New York, and he spent two years training in General Electric's Financial
Management Program prior to entering law school. Mr. Rona is an
Officer of the IBA and Co-Chair of the Legislation and Policy
Subcommittee of its Insolvency Section. Mr. Rona represents the IBA at
the United Nations Commission on International Trade Law, Working
Group V and has formed a Task Force of the IBA that works on the
development of an Insolvency Convention.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Panel, cont’d
Professor Min Han - Speaker
Min Han is a Professor of Law at Ewha Womans University Law School
in Seoul, Korea. His areas of expertise are insolvency, securities &
finance and company laws. Mr. Han holds law degrees from Seoul
National University College of Law (LL.B., 1981) and from Cornell Law
School (LL.M., 1992). From 2010 to present, he has been acting as a
member (adviser) of the Republic of Korea delegation in the deliberations
of UNCITRAL Working Group V (Insolvency Law). He served as an
outside legal adviser for Financial Services Commission of Korea (2011 -
2013). He is currently participating in a special committee of the Ministry
of Justice of Korea for amendment of Korean insolvency law. He is a
member of Korean and New York bars and previously he worked as a
partner at Kim & Chang (1986 - 1997, 2001 - 2010) and Yulchon (1997 –
2001) in Seoul, Korea. He has been a member of the International
Insolvency Institute since 2010.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Panel, cont’d
Alberto Mazzoni – Speaker
Alberto Mazzoni – JD. summa cum laude University of Pisa (1965); LL.M.
University of Chicago Law School (1966); Associate at Cohen & Meyohas, Paris
(1968-1970); Research Fellow at Michigan Law School (1970-1971); Associate
at White & Case, New York (1971-1973); Adjunct Professor, University of Pisa
Law School (1973-1978); Partner at Studio Legale Ardito, Rome and Milan
(1974-1982); Founder and Senior Partner of Mazzoni e Associati, Milan and
Rome (1982-2015); Professor of Commercial Law at the Universities of Pisa,
Genova, Sassari an Milan (from 1974 to retirement in 2014).
Currently President of the Governing Council of UNIDROIT; President of the
pre-arbitral Tribunal (Comitato dei Probiviri) of the Milan Stock Exchange; Head
of the Italian Delegation at several UNCITRAL Sessions and
UNCITRAL Working Groups; Member of the Asian Academy of Comparative
Law; Adjunct Professor of the Law School of the University of Macau; Lecturer
at the International Arbitration Master Program at Stockholm University; Senior
Partner of Mazzoni Regoli Cariello Pagni, Milan, Rome, Lucca and Pisa.
Milan, May 2016
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Panel, cont’d
Professor S Chandra Mohan – Speaker
Chandra Mohan is an Associate Professor of Law at the Singapore
Management University. His research interests include insolvency law
and practice, criminal law and corporate crime. In 2014, Chandra
assisted in researching into and drafting “A Lawyer’s Guide to Detecting
and Preventing Money Laundering”, a collaborative publication of the
IBA, the American Bar Association and the Council of the Bars and Law
Societies of Europe. He is a Fellow of the Insolvency Practitioners’
Association of Singapore. Chandra has previously held a number of
senior posts in the Singapore legal service including that of a senior J
judge of the District Court, Official Assignee/Official Receiver, Public
Trustee and Director of Legal Policy (Ministry of Law). During his term as
Official Receiver he was the Singapore delegate on the United Nations
Working Group which drafted the UNCITRAL Model Law on Cross-
Border Insolvency in 1997. In 1999 he was conferred the Public
Administration Medal (Gold) by the Singapore Government for
outstanding work in bankruptcy administration and for initiating major
reforms in insolvency law in Singapore.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Panel, cont’d
Gabriel Moss QC – Speaker
Gabriel Moss specializes in UK, EU, EEA and international insolvency and
restructuring, as well as company, banking, financial services, commercial
chancery and offshore law and litigation. He has provided expert evidence
for cases in the US, France, Germany, Australia, Greece, The Netherlands,
Italy, Iceland, Poland and Switzerland. Gabriel sits part-time as a deputy
High Court judge of the Chancery Division and is a part-time Visiting
Professor in Corporate Insolvency Law at Oxford University.
In the last few years, Mr. Moss has acted as leading counsel in eleven major
Supreme Court, Privy Council, CJEU and EFTA Court cases involving
insolvency, banking and commercial chancery matters: Heritable v
Landsbanki, Rubin v Eurofinance, New Cap v Grant, BNY Corporate Trustees
Services v Eurosail, Re Nortel, Re Lehman, Re Kaupthing Singer &
Friedlander, Perpetual Trustee Co v BNY Corporate Trustee, PWC v Saad
Investments Co Ltd, Singularis Holdings Ltd v PW, LBI hf v Merrill Lynch
International Ltd, Works Council of Nortel Networks SA v Liquidator of
Networks SA and the Joint Administrators of the Nortel Group and Olympic
Airlines.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Panel, cont’d
7
Prof. Rodrigo Rodriguez – Speaker
Prof. Rodrigo Rodriguez is the Head of the Swiss Federal Supervisory
Authority on Insolvency. As such, he assesses legislative projects in all
fields of national and international insolvency law. He is also responsible
for the implementation of international standards in Swiss insolvency and
private international law legislation. He is the Swiss delegate to
UNCITRAL working group V since 1996.
Prof. Rodrigo Rodriguez teaches in several Swiss universities (Bern,
Fribourg, Unidistance) insolvency law, private international law and
comparative procedural law and has published extensively in these
fields. Prior to his current civil service activities, Prof. Rodrigo Rodriguez
worked as a lawyer, amongst others, in the liquidation an restructuring
proceedings of the Swissair companies.

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Cross-border enforcement of insolvency judgements:
the EU and beyond
Outline of our Programme Today
• Overview of insolvency law regimes and regimes for foreign
judgments
• Rubin/New CAP cases in England — does the common law
or model law enable foreign insolvency-related judgments to
be enforced in the UK?
• The Sabena v. Swissair Litigation — Belgium initiates civil
proceedings against Switzerland and an insolvency matter
ends up in the International Court of Justice!?
• What is an insolvency-related judgment in Switzerland, Italy,
Korea, Singapore and the UK?
• Enforcement in Italy of foreign insolvency-related judgments
— lex specialis & strictly territorial!
• Notes on the European regime
• A global comparison of regimes
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Outline of Programme Today, (cont’d)
• Analysis of a hypothetical case which requires
recognition of a foreign discharge and
enforcement of an avoidance action
• If we have time, we will touch upon UK
schemes of arrangement and their
enforcement of judgment issues
• Recommended reforms – do we need a model
law or convention for the enforcement of
judgments?
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• An enforcement of judgments
Convention or Model Law
 Hague Conference (HCCH) Draft
on Enforcement of Judgments in
Commercial and Civil Litigation
could delete its current exclusion
of “insolvency, composition and
analogous matters.”
 UNCITRAL WG V could complete
its own New Model Law or
Convention concerning the
enforcement of insolvency-
related judgments.
• An Insolvency Convention that
provides certainty with respect to
not only enforcement of judgment
problems, but which also addresses
choice of law issues and conflicting
group proceedings, as proposed by
the IBA and UIA
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Recognition of Foreign
Confirmed Plan
(Discharge)
Recognition and
Enforcement of Insolvency-
Related Judgment
(Avoidance Action)
vs.
U.S. U.K. Singapore Switzerland Italy
Model Law Non-Model Law
Korea
Legislative
Reforms
Needed
Recognition
Proceeding
Recognition of
Confirmed Plan
(within Model
Law)
Recognition of
Foreign Judgment
(outside of Model
Law)
Opening of
(Parallel) Local
Proceedings
Recognition of
Foreign
Commonwealth
Judgment
automatic
(reform being
considered)
avoidance avoidancedischarge

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Cross-border enforcement of insolvency judgements:
the EU and beyond
Overview of key int'l insolvency
instruments1
Bilateral or regional efforts
- Latin America: Montevideo (1889, 1940), Havana (1928)
- Europe: Nordic countries (1933) + various bilateral conventions
- Africa (French speaking): OHADA Uniform Bankruptcy Law (1998)
Istanbul Convention (Council of Europe)
- Opened for signature since 5 June 1990
Model law on cross-border insolvency (UNCITRAL)
- Model law + Guide (1997, 2013), enacted cca 20 in States
- Legislative guidance (2004 + supplemented in 2010 and 2014) + Practice Guide
(2009)
IBA developed Model Instruments
EU Insolvency Convention (1995) >> EU Insolvency Regulations (2000, 2015)
1 Kurt H. Nadelmann, Bankruptcy Treaties, 93 U. Pa. L. Rev. 58 (1944-1945).
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Cross-border enforcement of insolvency judgements:
the EU and beyond
The European Union and the Council
of Europe
EU Convention on Insolvency Proceedings (1995)
– by 23 May 1996 signed by 14 out of 15 EU Member States at that time (with the
exception of the United Kingdom)
– Virgos-Schmit (explanatory) report (not approved by the Council)
– Revived in 1999 as a project of EU Regulation
EU Regulations on (general) insolvency
– Regulation (EC) No 1346/2000 on insolvency proceedings, Regulation (EU) 2015/848
on insolvency proceedings (the latter replaces the former as of 26 June 2017)
– concern the applicable law, jurisdiction and recognition and enforcement of
judgments + rules on coordination of cross-border group insolvency
– do NOT concern: insurance undertakings, credit institutions, investment firms and
collective investment undertakings
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Cross-border enforcement of insolvency judgements:
the EU and beyond
The EU Insolvency Regulation
• Under the European Insolvency Regulation ("EIR"), (i) judgments concerning
the course and closure of insolvency proceedings (including compositions
approved by a court) and (ii) judgments deriving directly from the insolvency
proceedings and which are closely linked with them (which would include a
judgment concerning a discharge of residual debts, among others) shall be
recognised by a member country without further formalities if such judgments
are handed down by a competent court whose judgment concerning the
opening of proceedings is recognised under the EIR.2
• However, in a secondary proceeding, restrictions of creditors' rights, such as a
stay of payment or discharge of debt, may not have effect in respect of the
debtor's assets which are not covered by such secondary proceeding without
consent of all the creditors having an interest.
2 EIR, Article 25(1); Klaus Pannen (ed.) European Insolvency Regulation (De Gruyter Recht, 2007) at 374-377; Alexander
Klauser "Enforcement of Insolvency-Derived Judgments - The Approach of the European Insolvency Regulation" Fourth
UNCITRAL International Insolvency Law Colloquium (Vienna, 16-18 December 2013) <www.uncitral.org/uncitral/en/
commission/colloquia/insolvency-2013-papers.html>.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
What Specifically Does the Model Law not
Address?
• The Model Law does not provide uniform Choice-of-Law Rules and
each jurisdiction involved may apply its own private international
laws.
• Universalist types of relief such as enforcement of a foreign
discharge or turnover of assets.
• The inefficiencies and loss of value which still arise among Model
Law countries that adopt the Model Law in different ways.
• Countries, like Korea, Canada and Mexico, refrain from enacting
the more ambitious, universalist parts of the Model Law, such as
recognition based on a set of objective criteria (COMI), automatic
relief and other discretionary relief.
• Most OECD countries like Austria, Belgium, Finland, France,
Germany, Italy, The Netherlands, Norway and Sweden have not
adopted the Model Law and, indeed, most of the UNCITRAL
member states (60 in all) have not.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
RUBIN/NEW CAP CASES
(A) RUBIN
 US default judgments against UK residents based (to the extent
relevant) on insolvency-related causes of action. Defendants did not
submit to US jurisdiction or take part.
 Recognition sought in UK under Model Law as implemented in UK,
alternatively at common law.
 UK Supreme Court held that (i) Model Law did not enable foreign
insolvency-related judgments to be enforced in UK (ii) nor did common
law (iii) the usual English law criteria for recognising judgments applied:
since Defendants were not subject to US personal jurisdiction (from
English law point of view) e.g. by residence or submission to
jurisdiction, US judgment would not be recognised in UK.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
RUBIN/NEW CAP CASES
(B) NEW CAP
• Australian liquidators obtained Australian judgment in respect of voidable
preference claims against Lloyds syndicates after a trial not attended by
Defendants, who did not submit to jurisdiction.
• Defendants had proved in the Australian liquidation in respect of other claims
and attended creditors’ meetings.
• UK Supreme Court held (see Rubin) that normal English judgment recognition
criteria applied. Defendants had submitted to the Australian liquidation
jurisdiction by lodging claims in the liquidation and attending creditor meetings.
Therefore there was personal jurisdiction in respect of the voidable preference
claims.
• In the subsequent Privy Council case of Shell v Krys (on appeal from BVI), it
was held to be enough that an alleged creditor submitted a claim, even if it
was rejected by the liquidator, for the creditor to have submitted to the
liquidation jurisdiction. The creditor had had the benefit of having its claim
considered and was therefore capable of being subject to an anti-suit
injunction preventing it from seizing the debtor’s assets.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
The (draft) UNCITRAL Model Law on
insolvency-related judgements
• Work on a «Model Law on Cross-border recognition and
enforcement of insolvency-related judgements» ongoing
since 2014
• Purpose: «fill the gap» (or: to reverse «Rubin»?)
• Two major issues still to be resolved:
– Scope: narrow as «insolvency related decisions» under the
EuInsReg (subpara II) vs. «catch as catch can» (just in case…)
– Indirect competence: narrow (debtor’s domicile or agreed forum)
vs. «anywhere not unreasonable»
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Insolvency law goes ICJ…
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Recognition of a Foreign ‘insolvency-related’ Judgement in
Switzerland (II) – the Sabena vs Swissair litigation
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B
CH
Claim
Insolvency
Civil proceedings
Insolvency Proceedings
recognition?
Decision (firm)
1. With defendant’s insolvency, any pending claims
become «insolvency related» … :-/
2. Lugano/BRX I are not applicable
3. Neither is it a «decree» under ch. 11 PILA
4. tertium non datur: = no recognition

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Cross-border enforcement of insolvency judgements:
the EU and beyond
Recognition of a Foreign ‘insolvency-related’ Judgement in
Switzerland (II) – regulatory background
Insolvency «decree» «insolvency-related»
decisions
«Commercial» decisions
EuInsReg 25 I:
“concerning the opening
of proceedings […]
course and closure”
EuInsReg 25 I 2:
“deriving directly from
insolvency proceedings
and [..] closely linked
with them”
EuInsReg 25 II / Brussels
I
“others than those”…[..]
2004 Model Law ?
[(new) Model Law ?]
Hague Convention (?)
national PIL
Recognition under ch.
11 of Swiss PILA
NO RECOGNITION Automatic recognition
under Lugano
( = Brussels I)
20
EU
UN
CH

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Enforcement in Italy of Foreign
Insolvency-Related Judgments
Introductory Remarks
A. Three possible regimes:
(i) Regime for foreign non-EU judgments;
(ii) Regime for foreign EU judgments;
(iii) Regime for foreign judgments to which a bilateral convention applies.
B. Will not deal with cases falling under regime (iii). Note however that:
− Some of the most relevant bilateral conventions on the subject matter had been entered into
with European States and as such they are now superseded by regime (ii); and
− Generally, enforcement under bilateral conventions still in force must follow ordinary
procedural rules of receiving State, that is regime (i).
C. Will focus on regime (i), but final remarks will be devoted to regime (ii) and, in
particular, to a practically very important open issue (enforcement in Italy of UK
schemes of arrangement concerning companies having their COMI in Italy).
Core Point is this: Foreign judgments derived from or connected with foreign
insolvency proceedings have no effects in Italy (and, in particular, have no effect with
respect to assets located in Italy), unless exceptionally granted exequatur
consistently with the overarching principle set out by Art. 9(3) of IBL.
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Enforcement in Italy of Foreign
Insolvency-Related Judgments
• Prevailing doctrinal view: applicability of Arts. 64 and 67 of Law 218;
consequential tacit abrogation of Art. 9(3) of IBL in view also of Art. 7
of Law 218, dealing with international lis pendens. Thus, automatic
recognition of foreign insolvency-related judgments, subject to ad hoc
exequatur proceedings whenever any such judgment is challenged
by any interested party.
• Prevailing view among the courts: Art. 9(3) of IBL still in force as lex
specialis; Italian notion of international bankruptcy jurisdiction strictly
territorial (except for universal competence assumed to exist only to
the benefit of Italian bankruptcy jurisdiction). See: Trib. Milan order of
October 30, 2014, in Il Fallimento, 2015, 693; Trib. Naples, order of
January 10, 2008, in Il Fallimento, 2008, 571; Trib. Lodi, In re Dam
Italia-Borgward Industrials B.V., Sep. 27, 2012, in Dir. Fall., 2005,
975.
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Enforcement in Italy of Foreign
insolvency-Related Judgments
Notes On European Regime
If the debtor’s COMI is in the U.S. but in a member State of EU other than Italy (all other
elements being the same).
• If the debtor’s COMI is within the EU, European Insolvency Regulation 1346/2000 («EIR
2000») applies until June 26, 2017, whereafter EIR 2000 shall be replaced by European
Insolvency Regulation 848/2015 («EIR 2015»).
• Consequently, until June 26, 2017 discharge of the debtor with COMI outside of Italy
pursuant to a reorganization plan judicially confirmed in the COMI member State must be
recognized in Italy «without any further formality» pursuant to Art. 25(1) of EIR 2000, whilst
after June 26, 2017 the same result shall be assured by virtue of Art. 32(1) of EIR 2015.
Unless a non-main proceeding had been opened in Italy at the initiative of the Italian creditor
prior to the judicial confirmation of the reorganization plan in the COMI member State, the
automatic recognition of such plan in Italy would result, in my opinion, in the extinction of the
claim of the Italian creditor, thus depriving the latter of the standing for filing in Italy either an
action for the enforcement of such claim or a bankruptcy petition for the opening in Italy of a
non-main proceeding.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Hypothetical Case3
• A debtor "D", which is a corporation incorporated and existing in the United
States, failed in its business and filed for a Chapter 11 proceeding in the U.S.
The plan was subsequently confirmed and the Chapter 11 proceeding was
successfully closed. A creditor “C" who has citizenship of your country
(Korea, UK, Italy, Switzerland and Singapore) received notices of the filing for
the Chapter 11 proceeding and the filing of proof of claims, but did not file a
proof of its claim in the U.S. Thus, the claim of C was not recognised in the
confirmed plan of D, and as a result, D was discharged from its liabilities for
the claim of C pursuant to the U.S. Bankruptcy Code. D owns assets in your
country. Based on its claim against D, C is preparing for the petition for a
bankruptcy proceeding (an insolvent liquidation proceeding) in a court of your
country where the assets of D are located.
3 The first part of this hypothetical case has been prepared largely based on the hypothetical case introduced in Chivying
Rim, "Cross-border insolvency - a hypothetical case" in Proceeding - The 4th Annual Symposium of East Asian
Association of Insolvency and Restructuring (in Korean) at 75 and Min Han, Recognition of Insolvency Effects of a Foreign
Insolvency Proceeding: Focusing on the Effect of Discharge, 19 Special Issue: Trade Development through Harmonization of
Commercial Law/L’Harmonisation du Droit CommercialFacteur de Développement du Commerce, The New Zealand Ass’n for
Comparative Law 345 (2015) (N.Z.)
http://www.victoria.ac.nz/law/nzacl/PDFS/SPECIAL%20ISSUES/HORS%20SERIE%20VOL%20XIX/20-Han.pdf
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Issues Raised By Our Hypothetical Case:
• After the successful close of an insolvency
proceeding (reorganization proceeding) in the forum
state, if a creditor attempts to exercise, in another
country, a claim which was not recognized in the
confirmed plan (and thus for which the debtor’s
liabilities were discharged pursuant to the insolvency
law of the forum state), could the debtor or any other
interested party prohibit or deny the exercise of such
claim by the creditor?
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Cross-border enforcement of insolvency judgements:
the EU and beyond
How about enforcement of avoidance
action?
• On the other hand, certain transaction between the
debtor “D” and a third party “T” which has citizenship of
your country (Korea, UK, U.S., Italy, Switzerland and
Singapore) was avoided by a transactional avoidance
action filed in the U.S. pursuant to the U.S. Bankruptcy
Code and D obtained a final and conclusive judgment
against T by which T shall be obligated to pay certain
amount of money to D. As T does not have assets in
the U.S., after the successful close of the Chapter 11
proceedings, D is attempting to enforce the foregoing
judgment in your country where the assets owned by T
are located.26

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Cross-border enforcement of insolvency judgements:
the EU and beyond
Analysis of the Hypothetical Case
• As to recognition of a foreign discharge effected by the confirmation of
the plan, it appears that virtually all insolvency regimes discussed
above (other than Chapter 15 of the U.S. Bankruptcy Code and the
EIR) apply their respective local rules (rules under the civil procedure
law or the private international law, etc.) for recognition of a foreign
court's ordinary judgment whether or not they have adopted legislation
based on the Model Law.
• As to recognition of a foreign judgment on an avoidance action, it
appears that virtually all insolvency regimes discussed above apply
their respective local rules for recognition of a foreign court’s ordinary
judgment whether or not they have adopted legislation based on the
Model Law.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Comparative Review - Hypothetical 1: Recognition of Confirmation of
Reorganization Plan (effect of discharge)
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States Available by
Model Law
relief
Available by recognition of foreign
judgement (outside of Model Law)
Necessity for opening
parallel local insolvency
proceedings to obtain
discharge
Model
Law
States
U.S. Yes Yes (after close of foreign insolvency
proceedings)
No
U.K. No Yes (but might be difficult due to personal
jurisdiction requirement)
No (Yes, if recognition of
judgement will likely be
unavailable)
Korea No Yes (but would be difficult due to service of
process requirement)
No (Yes, if recognition of
judgement will likely be
unavailable)
Non-
Model
Law
States
Italy N/A No Yes
Switzerland N/A Yes (through recognition proceeding if
reciprocity exists)
Yes (recognition
proceeding triggers
automatic local
proceedings)
Singapore N/A No Yes

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Cross-border enforcement of insolvency judgements:
the EU and beyond
Hypothetical Case, with Avoidance Action:
• If the insolvency representative (or the debtor-in-
possession) has obtained, in the forum state of the
insolvency proceedings, a favorable judgment on an
avoidance action which orders return of certain
payment (or other assets) to the insolvency
representative (or the debtor-in-possession) for the
benefit of the insolvency estate, after the successful
close of the insolvency proceedings, could the debtor
enforce such judgment in your country and procure
payment from T?
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Comparative Review - Hypothetical 2: Recognition and Enforcement of
foreign judgment on avoidance action
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States Available by
Model Law
relief
Available by recognition of foreign
judgment (outside of Model Law)
Need to file a new local
avoidance action
Model
Law
States
U.S. No (?) Yes No
U.K. No Yes (may be difficult due to personal
jurisdiction requirement)
No (Yes, if enforcement of
foreign judgement is
unavailable)
Korea No Yes (not entirely clear; would be difficult
due to service of process requirement)
No (Yes, if enforcement of
foreign judgement is
unavailable)
Non-
Model
Law
States
Italy N/A No (practically, little chance of success) Yes
Switzer-
land
N/A No Yes
Singapore N/A No (For Non-Commonwealth Judgements) Yes

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Cross-border enforcement of insolvency judgements:
the EU and beyond
Comparative Review – variant of Hypothetical 2: filing new avoidance action
with a local court
31
States Model Law approach (filed by representative of recognized
foreign insolvency proceedings)
Filed by
insolvency
representative of
local insolvency
proceedings
Model
Law
States
U.S. Yes, by foreign representative (however, only avoidance
under foreign insolvency law)
Yes
U.K. Yes, by foreign representative (however, court may impose
conditions on judgment for protection of local creditors)
Yes
Korea Yes, but only by local administrator newly appointed for
recognized foreign insolvency proceeding
Yes
Non-
Model
Law
States
Italy N/A Yes
Switzerland N/A Yes
Singapore N/A Yes

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Cross-border enforcement of insolvency judgements:
the EU and beyond
Enforcement of Insolvency-Related Judgments In Korea
(a Model Law Country)
Introduction
• Korea adopted legislation based on the UNCITRAL Model Law by
including provisions on cross-border insolvency in the Debtor
Rehabilitation and Bankruptcy Law (“DRBL”).
– DRBL became effective in April 2006 as a new consolidated insolvency law.
– DRBL discarded the principle of territoriality under the previous insolvency
laws and newly adopted the modified principle of universality.
• Subject to the provisions of the DRBL, Korean courts will provide
recognition and relief with respect to a foreign insolvency proceeding.
– Relief available under the DRBL is similar, but not identical to those under the
Model Law.
– Reciprocity not required.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
• Cross-border Insolvency Cases under the DRBL
– Inbound cases: Several precedents where Korean courts granted
recognition and relief in respect of foreign insolvency proceedings
(e.g., reorganization proceedings of U.S. and Japan; and insolvent
liquidation proceedings of Netherlands and Hong Kong)
 types of relief: procedural relief such as stay or cancellation of pre-
judgment attachments; prohibition of compulsory execution and
enforcement of security interest; and/or appointment of a local
administrator, etc.
– Outbound cases: Precedents of Korean insolvency proceedings
(in particular, rehabilitation proceedings of debtor companies
engaging in overseas shipping business) recognized and enforced
outside of Korea (e.g., U.S., U.K. and Australia) are being
accumulated.
33

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Cross-border enforcement of insolvency judgements:
the EU and beyond
Possible Statutory Basis for Recognition and
Enforcement of Insolvency-Related Judgments
• Model Law Relief under the DRBL (legislation enacting the UNCITRAL Model
Law)
– Simultaneously with, or after recognition of a foreign insolvency proceeding,
the court may grant certain relief, which includes (1) relief identical to the
mandatory relief under Article 20 of the Model Law, (2) the appointment of a
cross-border insolvency administrator and (3) ‘any other relief which is
necessary to preserve the debtor’s business and assets or to protect the
interests of creditors.’
• Questions:
– Whether based on the above provision of the DRBL referring to “any other
relief”, the court may grant (i) relief which recognizes the effect of a foreign
confirmed plan (discharge) (First Hypothetical) and/or (ii) relief which
recognizes and enforces a foreign judgment on avoidance action (Second
Hypothetical).
34

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Cross-border enforcement of insolvency judgements:
the EU and beyond
• Recognition of a Foreign Judgment under the Civil Procedures Law
– Automatic Recognition: Pursuant to the Civil Procedures Law, a foreign court’s
final and conclusive judgment (including a decision having the same effect) shall
be recognized if such judgment meets all of the following requirements:
 Jurisdiction: Such judgment was given by a court having valid jurisdiction in
accordance with the international jurisdiction principles under Korean law and
applicable treaties;
 Service of process: The defendant was duly served with service of process
(otherwise than by publication or similar means) in sufficient time to enable the
defendant to prepare its defense in conformity with the laws of the state where the
judgment was rendered (or, in conformity with the laws of Korea if it were made to
the defendant in Korea) or responded to the action without being served with
process;
 Public policy: In view of the contents and procedures of such judgment,
recognition of such judgment is not contrary to the public policy of Korea; and
 Reciprocity: Judgments of the courts of Korea are accorded reciprocal treatment
under the laws of such foreign state (or the requirements for recognition of a
foreign judgment in Korea and those in such foreign state are not significantly out
of balance and are not substantially different in material respect).
35

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Cross-border enforcement of insolvency judgements:
the EU and beyond
• Enforcement of a Foreign Judgment under the Civil Enforcement Law
– Enforcement Judgment: Pursuant to the Civil Enforcement Law of
Korea, a foreign judgment which satisfies the requirements for recognition
under Article 217 of the Civil Procedures Law can be enforced in Korea
by obtaining an Enforcement Judgment from the competent court without
re-examination of the merits.
• Questions:
– (First Hypothetical) Whether a foreign court’s decision approving the
reorganization plan can be recognized as a foreign judgment pursuant to
the Civil Procedures Law; and
– (Second Hypothetical) Whether a foreign court’s judgment on an
avoidance action can be recognized and enforced in Korea pursuant to
the Civil Procedures Law and the Civil Enforcement Law of Korea.
36

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Cross-border enforcement of insolvency judgements:
the EU and beyond
First Hypothetical - Recognition of a Foreign Confirmed
Plan (Discharge)
• Scholarly Views Split
– Recognition has become available based on the modified principle of universality
 As the DRBA discarded the principle of territoriality under the previous insolvency laws
and adopted the modified principle of universality, it is generally understood that the
effect of a foreign confirmed plan (discharge) could be recognized in Korea.
– Scholarly views have been split as to how a foreign discharge can be recognized in
Korea:
 Model Law Approach: the effect of a foreign confirmed plan (discharge) can be
recognized in Korea by obtaining recognition and relief from the court under the cross-
border insolvency provisions of the DRBL.
 Foreign Judgment Approach: the recognition of a foreign confirmed plan (discharge)
must be made pursuant to the provisions of the Civil Procedures Law concerning the
recognition of a foreign judgment.
37

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Cross-border enforcement of insolvency judgements:
the EU and beyond
First Hypothetical (cont’d)
– Model Law Approach
 This approach would have a merit from the perspectives of harmonization of cross-border
insolvency regimes and is more consistent in the treatment of the insolvency effects of a
foreign insolvency proceeding.
 However, it has weakness in that if the foreign insolvency proceeding is closed and there
is no longer a representative of the foreign insolvency proceeding, relief under the DRBL
would no longer be available for recognition of a foreign discharge (unless the foreign
insolvency proceeding can be re-opened for cross-border recognition).
– Foreign Judgment Approach
 This approach takes the view that relief available under the DRBL addresses only
procedural measures to support a foreign insolvency proceeding and relief which
disposes of a substantive law matter (such as discharge of the debtor’s liabilities) is not
available under the DRBL.
 A foreign court’s decision approving the reorganization plan can be recognized pursuant
to the provisions of the Civil Procedures Law.
38

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Cross-border enforcement of insolvency judgements:
the EU and beyond
First Hypothetical (cont’d)
• Korean Supreme Court’s Decision dated March 25, 2010 (case no.:
2009Ma1600): upheld “Judgment Approach”
– The recognition and relief under the cross-border insolvency provisions of the
DRBL are procedural supports for a foreign insolvency proceeding and are not
measures which change creditors’ claims in substantive law respects;
– As a court’s decision approving the plan in Chapter 11 proceedings of the U.S.
involves determination on the existence of the debtor’s liabilities under the
substantive laws (i.e., discharge), it would be proper to resolve a dispute on the
effect of a discharge through individual legal proceedings to which the debtor and a
relevant creditor are parties; and
– Accordingly, even if a discharge is effected in the course of a foreign insolvency
proceeding, recognition of a foreign court decision on a discharge is not different
from recognition of an ordinary foreign court judgment.
39

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Cross-border enforcement of insolvency judgements:
the EU and beyond
First Hypothetical (cont’d)
• Application of the Supreme Court Decision to First Hypothetical
– In order for the discharge effected in the U.S. Chapter 11 proceedings to be
recognized in Korea, the U.S. bankruptcy court’s order approving the plan must
meet the requirements for recognition of a foreign judgment under the Civil
Procedures Law.
– In the Hypothetical Case, the Korean court having jurisdiction over the bankruptcy
filing for the debtor “D” (or any other relevant legal proceedings between the debtor
“D” and the creditor “C”) will determine whether to recognize the U.S. bankruptcy
court’s order.
– It would be irrelevant whether Chapter 11 proceeding was pending at the time of
recognition.
– In general, it may not be easy to meet all the requirements for recognition and
further, due to the ambiguities in interpretation and the lack of court precedents,
there are legal uncertainties in assessing the possibility of obtaining such
recognition.
40

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Cross-border enforcement of insolvency judgements:
the EU and beyond
First Hypothetical (cont’d)
• Jurisdiction
– If a foreign court had a substantial connection with a relevant party to, or a subject
matter of a dispute, such court would have a valid international jurisdiction under
Korean law (Private International Law of Korea, Art. 2).
– In the First Hypothetical, it is likely that the U.S. bankruptcy court had a valid
international jurisdiction which is required for recognition of its order in Korea.
• Service of Process
– Under the Civil Procedures Law, if a service of process is made in Korea, it must
be made in accordance with Korean law (including applicable international treaties).
– The said Supreme Court decision did not address issues involving service of
process.
41

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Cross-border enforcement of insolvency judgements:
the EU and beyond
First Hypothetical (cont’d)
• Service of Process (cont’d)
– In the First Hypothetical, if the notices to the debtor “D” in the U.S. Chapter 11
proceedings were made to “D” in Korea and such notices were not made in
conformity with Korean law, the above requirement for valid service of process
would not likely be met.
– Suggestion from practicing attorneys: It may be considered obtaining the
Korean court’s relief under the DRBL (a Model Law relief) by which the Korean
court sends the notices to the relevant parties for the benefit of the U.S. Chapter
11 proceedings.  It is not clear whether this view will be accepted by Korean
courts.
– Critical Impediment: The above requirement for valid service of process would
likely be a critical impediment to recognition of the effect of a foreign confirmed
plan (a discharge effected in a foreign insolvency proceeding).  It would
necessitate the commencement of a parallel domestic proceeding from the
beginning.
42

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Cross-border enforcement of insolvency judgements:
the EU and beyond
First Hypothetical (cont’d)
• Public Policy
– In the above Supreme Court decision, the Supreme Court held that the
recognition of a foreign court’s order may be denied:
 if the procedures for such court order are contrary to the public policy (e.g.,
infringement of a relevant creditor’s right to participate in the foreign
insolvency proceeding), or
 the result of recognizing a foreign court’s order would be contrary to the public
policy (e.g., such recognition would improperly prejudice the interests of
creditors)
– Thus, in the First Hypothetical, depending upon the circumstances, the recognition
of a discharge effected by a foreign confirmed plan may be denied by the Korean
court on the ground of the public policy.
43

45. www.duanemorris.com
Cross-border enforcement of insolvency judgements:
the EU and beyond
First Hypothetical (cont’d)
• Reciprocity
– Generally, reciprocity requirement would not be an impediment if either of
the following requirements can be met:
 Precedents where insolvency proceedings of Korea were recognized
in the foreign country (e.g., U.S.); or
 Foreign insolvency law (e.g., Chapter 15 of the U.S. Bankruptcy
Code) provides better or similar level of international comity in
recognition of a foreign insolvency proceeding.
44

46. www.duanemorris.com
Cross-border enforcement of insolvency judgements:
the EU and beyond
Second Hypothetical - Recognition and Enforcement of
Insolvency-Related Judgment (Foreign Judgment on
Avoidance Action)
• There is no Korean court precedent on point.
• Model Law Relief: Not feasible
– In light of the above-mentioned Supreme Court Decision, recognition and
enforcement of a foreign judgment on an avoidance action may not be granted
through Model Law relief under the DRBL.
• Enforcement of a Foreign Judgment: Probable
– Whether a foreign judgment on an avoidance action may be recognized and
enforced pursuant to the Civil Procedures Law and the Civil Enforcement Law
 Possibility of differing views: affirmative view vs. negative view
– In light of the above-mentioned Supreme Court Decision, although not entirely
clear, it is probable that such judgment may be recognized and enforced if the
requirements for recognition under the Civil Procedures Law are met.
45

47. www.duanemorris.com
Cross-border enforcement of insolvency judgements:
the EU and beyond
Second Hypothetical (cont’d)
• Alternative Model Law measures available under the DRBL
– Filing of an avoidance action in Korea based on the applicable laws of the
foreign state where the foreign insolvency proceeding is pending:
 (if it is pending) a foreign insolvency proceeding may be recognized
under the DRBL (Model Law).
 A local administrator may be appointed through relief granted by the
local court pursuant to the DRBL (Model Law).
 The local administrator may file an avoidance action with, and obtain
a judgment from a competent court of Korea based on the relevant
foreign insolvency law (or insolvency-related law).
– This Alternative may be considered if it is unlikely that a foreign
avoidance judgment will be recognized and enforced by a Korean court.
46

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Enforcement in Italy of Foreign
Insolvency-Related Judgments Under Italian Law
First Hypothetical (1)
Italian creditor seeks to enforce in Italy claim against Italian assets of a U.S. company,
whose obligations towards the Italian creditor have been discharged in the U.S. pursuant to
a judicially confirmed plan under Chapter XI.
Variant: Italian creditor files in Italy petition for the opening of insolvency proceedings in
Italy against reorganized U.S. debtor.
1. Italy has not adopted the Model Law.
2. In the absence of Model Law regime, unclear under Italian law which rules are
applicable to enforcement of foreign non-EU insolvency-related judgments; alternative
between:
(i) rules applicable to recognition and enforcement of foreign judgments generally (Arts. 64 and 67 of Law
218/1995, known as Italian Private International Law, hereinafter “Law 218”);
(ii) special implied rules applicable to foreign insolvency-related judgments (other than EU judgments), as
a result of the notion of Italian international bankruptcy competence based on Art. 9(3) of Italian
Bankruptcy Law of 1942, as subsequently amended (hereinafter “IBL”). Art. 9(3) of IBL reads as
follows: “The entrepreneur, whose headquarters (COMI) is situated abroad, may be subjected to
insolvency proceedings in Italy even if insolvency proceedings have already been opened against him
abroad”.
47

49. www.duanemorris.com
Enforcement in Italy of Foreign
Insolvency-Related Judgments
First Hypothetical (2)
3. Prevailing doctrinal view: applicability of Arts. 64 and 67 of Law 218;
consequential tacit abrogation of Art. 9(3) of IBL in view also of Art. 7
of Law 218, dealing with international lis pendens. Thus, automatic
recognition of foreign insolvency-related judgments, subject to ad hoc
exequatur proceedings whenever any such judgment is challenged
by any interested party.
4. Prevailing view among the courts: Art. 9(3) of IBL still in force as lex
specialis; Italian notion of international bankruptcy jurisdiction strictly
territorial (except for universal competence assumed to exist only to
the benefit of Italian bankruptcy jurisdiction). See: Trib. Milan order of
October 30, 2014, in Il Fallimento, 2015, 693; Trib. Naples, order of
January 10, 2008, in Il Fallimento, 2008, 571; Trib. Lodi, In re Dam
Italia-Borgward Industrials B.V., Sep. 27, 2012, in Dir. Fall., 2005,
975.
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50. www.duanemorris.com
First Hypothetical (3) and Variant
5. Realistic answer with respect to issues posed by First Hypothetical
(discharge hypothetical):
− Small or no chances to prevent enforcement by Italian creditor on Italian assets
notwithstanding discharge obtained in the U.S. by U.S. reorganized debtor (see, however,
Trib. Monza October 28, 2008, Bear Steams Bank Plc v. Fall. N.N.V., in Unalex, Decision IT-
532).
− In particular (i) reorganized debtor in possession (and/or court-appointed representative of
same or representative of Newco as successor-in-law of original debtor) would be recognized
standing to sue or to be sued in Italy; (ii) no effect would be given to U.S. discharge if assets
in Italy were deemed to be sufficient (per se or jointly with other elements) to establish basis
for exercise in Italy of bankruptcy jurisdiction and a petition to that effect were filed (see point
6 below); (iii) in the absence of grounds for exercise of Italian bankruptcy jurisdiction, U.S.
discharge might be given effect in Italy only if U.S. reorganized debtor (or court-appointed
representative) were able to show that requirements of Art. 67 of Law 218 are all met by U.S.
order confirming the plan and providing for the discharge (major obstacles: finality; service of
process requirements; Italian action commenced prior to opening of Chapter XI proceedings
in the U.S.).
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Enforcement in Italy of Foreign
Insolvency-Related Judgments Under Italian Law

51. www.duanemorris.com
Cross-border enforcement of insolvency judgements:
the EU and beyond
The Hypothetical Issues in Singapore
• The Hypothetical raises a number of issues in
respect of the recognition of a foreign
bankruptcy and the subsequent discharge, the
consequences of the discharge, the failure of
the bankruptcy administrator not to apply to
deal with the Singapore assets, the omission
of the Singapore creditors to file proofs of debt
in the US Bankruptcy despite receiving
notification to do so and the effect of claims by
Singapore creditors to assets in Singapore
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52. www.duanemorris.com
Cross-border enforcement of insolvency judgements:
the EU and beyond
Recognition of a Foreign Discharge in
Singapore (not a Model Law Country)
• Singapore has no domestic legislation generally dealing with cross-
border insolvency issues
• Singapore is not a signatory to any international treaty or
convention relating to cross-border insolvencies of companies
• Singapore Courts have, however, recognized the common law
Ancillary Liquidation Doctrine which states that where a company
is wound up in its country of incorporation, all other courts are to
act as ancillary to the principal liquidation, but subject to a statutory
exception, which ringfences assets of foreign companies doing
business in Singapore for the benefit of local creditors.
• But recognition of a foreign liquidator, bankruptcy order or
discharge does not mean that the attendant consequences such as
the stay of further proceedings upon a discharge will be
recognized: Beluga Chartering GmbH (2014, Singapore Court of
Appeal)
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Recognition of a Foreign Discharge in
Switzerland (not a Model Law Country)
• Explicit recognition proceeding required
[including evidence of reciprocity]
• Recognition triggers an automatic local proceeding (even if no local
creditors)
• Both require advance of fees and lawyers’ cost…
• Any transfer of funds abroad requires (additional) recognition of the
status of claims of the main proceedings
• currently a Reform project underway… ‘inspired’ in the Model Law:
would renounce to reciprocity test and allow for ‘skipping’ the local
proceedings in simple cases
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Recognition of a Foreign ‘insolvency-related’
Judgement in Switzerland
• Excluded from commercial recognition (Lugano)
• Excluded from insolvency opening/discharge decisions
• NO cross-border recognition (!)
• See SABENA vs SWISSAIR
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Cross-border enforcement of insolvency judgements:
the EU and beyond
The Hypothetical
• Singapore courts may not wish to exercise their inherent discretion to
stay proceedings by the local creditors against the assets in
Singapore for the following reasons:
 There was no application by the US debtor to apply to the local courts
to be appointed a liquidator and to deal with the Singapore assets
 There is no explanation as to why the assets in Singapore were left
undisturbed and no claims made for these assets by the debtor
 The fact that the Singapore creditors did not file a proof of debt will not
prejudice their claims to the company’s assets in the jurisdiction
(Manharlal Trikamdas Mody v Sumikin Bussan International (HK) Ltd
(2014, Singapore High Court))
 It would be unfair to deprive the local creditors of their claims against
the local assets in these circumstances
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56. www.duanemorris.com
Cross-border enforcement of insolvency judgements:
the EU and beyond
SCHEMES OF ARRANGEMENT
• These are statutory compromises under company and not insolvency law. They
can apply to either shareholders or creditors or both.
• The procedure involves (i) a court hearing to deal with jurisdiction, both
international and domestic, including the question of classes (ii) one or more
meetings of creditors and/or shareholders, which require majority in number and
75% in value (iii) a further court hearing to approve the “scheme” (plan).
• The procedure can be and is sometimes used as a de facto insolvency
proceeding, although there is no mandatory stay. Judges have granted
discretionary stays under general English law powers. The scheme procedure is
not listed either in the current or Recast Insolvency Regulations and is therefore
not subject to the allocation of international jurisdiction between EU Member
States under those Regulations.
• There are no express international allocation of jurisdiction rules for schemes in
the Recast Jurisdiction and Judgments Regulation.
• Schemes do not require proof of actual insolvency and are therefore popular with
Continental European companies – under other EU Member State laws such
compromises require proof of insolvency and an insolvency filing.
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57. www.duanemorris.com
Cross-border enforcement of insolvency judgements:
the EU and beyond
RECOGNITION OF SCHEMES IN OTHER
COUNTRIES
(A) CONFLICT PRINCIPLES
• As long as an English law debt is extinguished or modified by its proper law,
this should be recognised in other countries on ordinary conflicts principles.
• In relation to EU countries, there can be a separate question raised as to
whether the court order “sanctioning” (confirming) the Scheme (plan) has to
be recognised and enforced in other EU countries pursuant to the Recast
Jurisdiction and Judgments Regulation.
• My own view is that (i) in the light of conflicts principles, this question is
unnecessary (ii) the concept of “judgment” under the Recast Jurisdiction and
Judgments Regulation is very wide and therefore Schemes should be
recognised under the Regulation, even though (iii) the Regulation does not
expressly mention Schemes or provide any express allocation or jurisdiction
rule. The anomaly of having a recognition but no jurisdiction rule arises
because the 1968 vintage text was agreed when the UK was not a party to the
Brussels Convention and the parties did not have UK type schemes.
56
Prof. Mazzoni: very
open and
controversial issues

58. www.duanemorris.com
Cross-border enforcement of insolvency judgements:
the EU and beyond
POTENTIAL REFORM
• Lord Collins in Rubin considered the question of whether there should be a
separate special common law rule for recognising insolvency-related
judgments. This had been suggested by Lord Hoffmann in the previous case
of Cambridge Gas.
• Lord Collins rejected this idea, partly because it would lack reciprocity without
an international convention.
• It would be desirable to have an international convention.
• Meanwhile, other courts could develop extra-statutory principles for indirect
assistance for foreign insolvency-related judgments. “Assistance” would be
discretionary and based on case-law principles, as opposed to “Recognition”
which is mandatory and subject to relatively rigid rules. For example, in
Singularis the Privy Council (on appeal from Bermuda) considered that in
principle a foreign insolvency proceeding could be assisted by discovery
orders pursuant to common law, as long as such relief was available under
the law of the foreign jurisdiction.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Problems of Current Cross-Border Insolvency Regimes
• Different Procedures and Rules
– Local law requirements for recognition of a foreign judgment are different from
those for recognition and relief available in respect of a foreign insolvency
proceeding under the UNCITRAL Model Law.
– Cross-border recognition of the effect of a foreign confirmed plan (discharge),
which is one of the core insolvency effects, would be governed by different
procedures and rules outside of the UNCITRAL Model Law.
• Prejudice to the Goal of the UNCITRAL Model Law
– In order to secure legal certainty in the discharge of its debts, the debtor may be
inclined to separately file for a local insolvency proceeding in parallel with a foreign
main proceeding rather than relying on cross-border recognition and relief available
for such foreign proceeding under the UNCITAL Model Law.
– Similar problems exist in respect of recognition and enforcement of other “foreign
insolvency-related judgments”, including a foreign judgment on an avoidance
action.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Improvements Required
• Need to better achieve harmonization of cross-border insolvency regimes
pursued by the UNCITRAL Model Law
• Improvements required for recognition of a foreign discharge (in
the states which have adopted the UNCITRAL Model Law):
– amending Article 21 of the UNCITRAL Model Law to clearly provide for
new relief for recognition of a foreign confirmed plan (and a discharge
order) effected by or relating to a foreign insolvency proceeding; and
– some additional measures for recognition of a foreign insolvency
proceeding which has been closed:
 amending the UNCITRAL Model Law to include relief which may be sought by
the debtor (or any other interested party) after the close of a foreign
insolvency proceeding, or
 preparing separate legislative provisions that may be applied outside of the
UNCITRAL Model Law after the close of a foreign insolvency proceeding.
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Cross-border enforcement of insolvency judgements:
the EU and beyond
Improvements Required (cont’d)
• Improvements for recognition and enforcement of foreign
insolvency-related judgments
– Desirable to develop a model law or model legislative provisions concerning the
procedures and requirements for recognition of insolvency-related judgments
(including an order confirming the plan and a discharge order) rendered relating to
a foreign insolvency proceeding.
– Currently under deliberations at the UNCITRAL Working Group V (Insolvency Law)
• Issues for further review may include, among others:
– Removal of potential impediment caused by rigid requirements for valid service of
process
– Safeguard to protect creditors’ interest
– Removal of reciprocity requirement
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Please refer any questions or follow-ups to:
Patrick N.Z. Rona
pnzrona@duanemorris.com
DUANE MORRIS LLP
1540 Broadway
New York, NY 10036
Tel: 212-692-1048
Fax: 212-692-1020
www.duanemorris.com
Disclaimer: These materials and panel’s comments are intended for discussion purposes only and are
not intended as legal advice. The views expressed are the personal opinions of the speakers and not
those of the institutions or organizations with which the speakers are affiliated, or of the International
Bar Association or its officers (which make no representation as to the accuracy of the information
communicated).
Thank you for your participation!
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