4th Conference of the Judicial Insolvency Network on 9 June 2023
The Judicial Insolvency Network (“JIN”) held its 4th conference in Amsterdam on 9 June 2023. The conference was conducted in a hybrid format with most members attending physically.
Members of the JIN who attended the conference comprised judges from the following courts:
(i) the Court of Appeal of England and Wales;
(ii) the Eastern Caribbean Supreme Court;
(iii) the Federal Court of Australia;
(iv) the Sao Paolo State Court of Justice, First Bankruptcy Court of Sao Paolo, Brazil;
(v) the Seoul Bankruptcy Court;
(vi) the Superior Court of Justice of Ontario; and
(vii) the Supreme Court of Singapore.
The JIN was also delighted to have, for the first time, judges attending as observers from:
(i) the Supreme Court of India; and
(ii) the Supreme Judicial Council of the Kingdom of Bahrain.
As the first in-person meeting of the JIN since the pandemic, the meeting was an excellent opportunity for members and observers of the JIN to discuss the status of the JIN initiatives and the progress made since the 3rd conference held in Singapore on 5 April 2019. Issues discussed at the meeting included the creation of a Steering Committee to manage ongoing projects of the JIN; updates on the implementation of the JIN Guidelines issued in October 2016; the proposed creation of a repository of landmark cases and matters in which the JIN Guidelines and other initiatives have been adopted; updates on projects that the JIN has been working on including the Guidelines on the Intersection of Admiralty and Insolvency Law and the Use of Alternative Dispute Resolution in cross-border insolvency cases.
Members at this JIN meeting also welcomed the adoption of the JIN Guidelines by the Supreme Judicial Council of the Kingdom of Bahrain, the first court from the Middle East to do so.
Finally, to ensure the continuity of the work carried out by the JIN, it was agreed that the 5th conference of the JIN would be held in Singapore in June 2024.
The Supreme Judicial Council of the Kingdom of Bahrain adopts the JIN Guidelines
In June 2023, the Supreme Judicial Council of the Kingdom of Bahrain adopted the JIN Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters.
See:
https://www.bna.bh/en/news?cms=q8FmFJgiscL2fwIzON1%2BDge%2BTndw70E8PQDqERlLJNg%3D
The Supreme Court of Singapore adopts the Modalities of Court-to-Court Communication
On 19 June 2020, the Supreme Court of Singapore adopted the Modalities of Court-to-Court Communication (the “Modalities”) through its Registrar’s Circular No. 7 of 2020 to supplement the Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters (the “JIN Guidelines”), which it earlier adopted on 1 February 2017:
see https://www.supremecourt.gov.sg/rules/legislation-and-directions/registrar's-circulars
The Supreme Court of British Columbia adopts the JIN Guidelines
On 11 February 2020, the Supreme Court of British Columbia adopted the JIN Guidelines in all cross-border actions requiring court-to-court communications including, but not limited to, insolvency and family proceedings, through PD-57 of its civil practice directions:
see https://www.bccourts.ca/supreme_court/practice_and_procedure/civil_practice_directions.aspx#
The Federal Court of Australia adopts the JIN Guidelines and Modalities of Court-to-Court Communication
On 31 January 2020, the Federal Court of Australia adopted the JIN Guidelines and Modalities through the amended Cross-Border Insolvency Practice Note: Cooperation with Foreign Courts or Foreign Representatives (GPN-XBDR):
see https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes
The Seoul Bankruptcy Court adopts the Modalities of Court-to-Court Communication
On 1 January 2020, the Seoul Bankruptcy Court adopted the Modalities through an amendment to its Procedural Guideline No. 504:
see http://slb.scourt.go.kr/rel/guide/cross/index_e.jsp
and http://slb.scourt.go.kr/rel/information/qna/practice_rule.pdf
Modalities of Court-to-Court Communication
The Judicial Insolvency Network (“JIN”) has published a set of modalities for court-to-court communication in insolvency proceedings (available at http://jin-global.org/modalities.html). Titled the Modalities of Court-to-Court Communication (the “Modalities”), they supplement the Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters (also known as the JIN Guidelines) which the JIN issued in October 2016.
The JIN may be contacted at http://www.jin-global.org/contact.html in relation to the Modalities.
3rd Conference of the Judicial Insolvency Network on 5 April 2019
The Judicial Insolvency Network (“JIN”) met in Singapore on 5 April 2019. This was the 3rd conference of the JIN, following the 1st conference also in Singapore on 10 and 11 October 2016 and the 2nd conference in New York City on 22 and 23 September 2018.
The conference discussed the four projects which the JIN initiated at the 2nd conference. They relate to: (i) core principles on recognition of foreign insolvency proceedings and judgments; (ii) modalities of court-to-court communication; (iii) guidelines when maritime law and insolvency law intersect, especially the arrest of ships and Articles 19, 20 and 21 of the UNCITRAL Model Law on Cross-Border Insolvency; and (iv) identification of insolvency disputes which parties should consider sending for alternative dispute resolution.
Members of the JIN who attended the conference comprised judges from the following courts:
(i) the United States Bankruptcy Court for the Southern District of New York;
(ii) the United States Bankruptcy Court for the District of Delaware;
(iii) the Grand Court of the Cayman Islands;
(iv) the Supreme Court of Bermuda;
(v) the Court of Appeal of England and Wales;
(vi) the Federal Court of Australia;
(vii) the Supreme Court of New South Wales;
(viii) the Seoul Bankruptcy Court; and
(ix) the Supreme Court of Singapore.
The four projects have made progress. In particular, there was detailed discussion on the modalities of court-to-court communication in insolvency proceedings resulting in a draft being prepared for circulation to the various JIN members for comment (the “Modalities”). Unlike the Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters (the “JIN Guidelines”) issued by the JIN in October 2016, which focus on the principles governing how courts should communicate with one another, the Modalities focus on the mechanics of court-to-court communication. These include how a court may initiate communication with another court, the arrangements as to time, method and language of communication, and the designation of a facilitator for this purpose. Akin to a checklist, the Modalities seek to distil the basic administrative issues a court may wish to address in advance in relation to court-to-court communication, bearing in mind the time, language and cultural differences that may underpin much of cross-border communication. It is expected that the JIN will issue the Modalities later this year. The JIN hopes that the Modalities will receive the same positive reception as the JIN Guidelines have.
Members at this JIN meeting also welcomed the adoption of the JIN Guidelines by the District Court Midden-Nederland (the Netherlands), which is the second European court to adopt the JIN Guidelines. The Chancery Division of the High Court of England & Wales adopted the JIN Guidelines on 5 May 2017.
The District Court Midden-Nederland (the Netherlands) adopts the JIN Guidelines
On 1 May 2019, the District Court Midden-Nederland (the Netherlands) adopted the JIN Guidelines for the purpose of communication and cooperation with courts outside of the European Union. The adoption by the District Court Midden-Nederland (the Netherlands) is published on its website,
https://www.rechtspraak.nl/English/Pages/International-Insolvency.aspx.
2nd Conference of the Judicial Insolvency Network in September 2018
Judges from the JIN met in New York City on 22 and 23 September 2018. The meeting in New York City was the second conference of the JIN and was jointly hosted by the US Bankruptcy Court for the Southern District of New York and the US Bankruptcy Court for the District of Delaware. The first conference was hosted by the Supreme Court of Singapore in October 2016. At the second conference, judges from close to 20 courts from around the world noted the importance to the international insolvency community of common principles and guidelines on cross-border insolvency matters prepared and agreed upon by judges from various key commercial jurisdictions. Building on the progress made thus far, the judges agreed to embark on four new projects.
- Core principles on recognition of foreign insolvency proceedings
To date, while over 40 jurisdictions have adopted the Model Law on Cross-Border Insolvency (the “Model Law”), an overwhelming majority of jurisdictions have not and different jurisdictions (including those that have adopted the Model Law) have varying approaches to the recognition of foreign insolvency proceedings. The judges agreed to produce a set of core principles on the recognition of foreign insolvency proceedings. A sub-committee of judges agreed to steer the direction of this JIN project.
- Modalities of court-to-court communication
Recognising the difficulties of communication between courts posed in no small part by language and cultural differences, the judges considered that it would also be useful to devise a set of modalities for court-to-court communication to guide international stakeholders on how courts from diverse backgrounds (such as those from civil and common law systems) could communicate effectively. A separate sub-committee of judges was formed to lead this project.
- Guidelines when maritime law and insolvency law intersect, especially the arrest of ships and Articles 19, 20 and 21 of the Model Law
Insolvency law, neither creating nor extinguishing rights, seeks to manage the rights of competing stakeholders in insolvency in an organised and collective manner amidst the interplay of a web of various private and international laws. Admiralty law is notably one of them where the interaction – or even conflict – between the two bodies of law for the satisfaction of claims has posed difficult problems. The judges therefore decided to look into this intractable area with focus on the arrest of vessels in the context of the Article 20 relief under the Model Law. Some of the judges with experience in admiralty law will take charge of this project.
- Identification of insolvency disputes which parties should consider sending for alternative dispute resolution
The JIN will also be examining how arbitration can be tapped for the resolution of certain insolvency matters for a more efficient resolution of disputes.
To date, while over 40 jurisdictions have adopted the Model Law on Cross-Border Insolvency (the “Model Law”), an overwhelming majority of jurisdictions have not and different jurisdictions (including those that have adopted the Model Law) have varying approaches to the recognition of foreign insolvency proceedings. The judges agreed to produce a set of core principles on the recognition of foreign insolvency proceedings. A sub-committee of judges agreed to steer the direction of this JIN project.
Recognising the difficulties of communication between courts posed in no small part by language and cultural differences, the judges considered that it would also be useful to devise a set of modalities for court-to-court communication to guide international stakeholders on how courts from diverse backgrounds (such as those from civil and common law systems) could communicate effectively. A separate sub-committee of judges was formed to lead this project.
Insolvency law, neither creating nor extinguishing rights, seeks to manage the rights of competing stakeholders in insolvency in an organised and collective manner amidst the interplay of a web of various private and international laws. Admiralty law is notably one of them where the interaction – or even conflict – between the two bodies of law for the satisfaction of claims has posed difficult problems. The judges therefore decided to look into this intractable area with focus on the arrest of vessels in the context of the Article 20 relief under the Model Law. Some of the judges with experience in admiralty law will take charge of this project.
The JIN will also be examining how arbitration can be tapped for the resolution of certain insolvency matters for a more efficient resolution of disputes.