Guidelines for Cooperation and Communication Between Courts in Cross-Border Insolvency Matters: Too Far or Not Far Enough

Coordination between courts in cross-border insolvency proceedings is vital to ensuring fair global distribution of assets and . reducing administration costs. Absent communication, efficient administration of cross-border proceedings is nearly impossible.1 In recognition of this need, the Judicial Insolvency Network ("JIN") established the Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters ("Guidelines") which was recently adopted by the Singapore Supreme Court, Bermuda's Commercial Court and the United States Bankruptcy Courts for the Districts of Delaware and the Southern District of New York. The JIN held its inaugural meeting in October 2016 which was attended by Judges from 10 jurisdictions including Australia (Federal Court and New South Wales), the British Virgin Islands, Canada (Ontario), the Cayman Islands, England & Wales, Hong Kong SAR (as an observer), Singapore and the United States (Delaware and the Southern District of New York). The Guidelines are an important step in facilitating cooperation between courts but fall short of establishing a protocol, thereby requiring the development of a protocol or order during each insolvency. General guidelines provide flexibility in devising protocols between jurisdictions with inconsistent laws. However, while insolvency regimes vary between the JIN jurisdictions, it is notable that all 10 represented jurisdictions possess sophisticated legal systems based on the English common law model. Therefore, the Guidelines may be the first step in establishing default protocols between the jurisdictions. However, Guidelines requiring recognition of foreign laws or orders may not provide adequate protection to parties when dealing with less developed legal regimes. This article first discusses the importance of guidelines and protocols before highlighting key provisions in the Guidelines and arguing that the Guidelines are a positive step towards coordination in JIN · jurisdictions but may. provide insufficient protection when parallel proceedings are in other jurisdictions.