A comparative analysis of cross-border insolvency : the UNCITRAL Model Law and Regulation 2015/848

Abstract

Trade nowadays is forever becoming more international in scope and practice. This would inevitably mean that traders, regardless of their form or size, would have establishments and creditors in multiple jurisdictions. Hence, when things go awry, specifically when the trader becomes insolvent or requires some sort of restructuring, a procedure should be in place to cater for such cross-border issues. In such an instance, cross-border insolvency legislation becomes an imperative asset for any state which encounters such issue. This issue really came into the foray in the 1990’s, and at the international bodies at the forefront of such a matter were the European Union and the United Nations Commission on International Trade Law. The former enacted Regulation (EC) 1346/2000, which eventually was recast into Regulation (EU) 2015/848. The latter published the Model Law on Cross-Border Insolvency. The aim of this Thesis is to provide a comparative analysis between Regulation (EU) 2015/848 and the Model Law, analyse where the same may improve upon and the takeaways from each other. In terms of the comparative analysis, this shall be divided into an analysis from a historical point of view, scope and applicability, procedure and finally an analysis on the persons administering the procedure. This thesis will also highlight the vis-à-vis such comparative analysis, the uncertainties and possible procedural hurdles which might be embedded within Regulation (EU) 2015/848 as well as provide brief suggestions for possible updates which might be made to the Model Law.