Developing Protocols for Court-to-Court Communication in Transnational Insolvency Proceedings: A Limited Framework for Cooperation

When global enterprises face insolvency, the expense of parallel insolvency proceedings in jurisdictions where the enterprises do business or have assets can deplete the funds available for distribution to creditors in a liquidation, or available for corporate restructuring. Recent trends show courts cooperating across jurisdictions to streamline the process and reduce costs. This trend has been facilitated by adoption of the UNCITRAL Model Law on Cross-Border Insolvency, and courts in different countries holding joint hearings. While cooperation and coordination are often necessary, courts in most jurisdictions are not authorised to discuss cases with external parties, including foreign courts, outside formal channels. To address this problem, the last few years have seen several courts adopt guidelines allowing parties to establish protocols that permit court-to-court communication. This chapter addresses the recent developments and challenges in facilitating cross-border judicial cooperation directed at reducing the costs of transnational insolvencies.