A debtor is subject to a foreign proceeding and a local proceeding at the same time. Discuss the provisions of UNCITRAL Model Law for the co-ordination of the proceedings in such a situation.
CS Professional · Corporate Restructuring, Valuation and Insolvency · PYQS · December 2021
A debtor is subject to a foreign proceeding and a local proceeding at the same time. Discuss the provisions of UNCITRAL Model Law for the co-ordination of the proceedings in such a situation.
Answer & Explanation:
Article 29 of the of UNCITRAL Model Law gives guidance to the court that deals with cases where the debtor is subject to a foreign proceeding and a local proceeding at the same time. Where a foreign proceeding and a proceeding under the laws of the enacting State relating to insolvency are taking place concurrently regarding the same debtor, the court shall seek cooperation and coordination under Articles 25, 26 and 27, and the following shall apply: When the proceeding in the State (which has enacted Model Law) is taking place at the time the application for recognition of the foreign proceeding is filed- Any relief granted under Article 19 or 21 must be consistent with the proceeding in such State; and If the foreign proceeding is recognized in such State as a foreign main proceeding, Article 20 does not apply; When the proceeding in such State commences after recognition, or after the filing of the application for recognition, of the foreign proceeding- Any relief in effect under Article 19 or 21 shall be reviewed by the court and shall be modified or terminated if inconsistent with the proceeding in this State; and If the foreign proceeding is a foreign main proceeding, the stay and suspension referred to in Article 20 shall be modified or terminated, if inconsistent with the proceeding in such State; In granting, extending or modifying relief granted to a representative of a foreign non-main proceeding, the court must be satisfied that the relief relates to assets which, according to the law of the enacting State, should be administered in the foreign non-main proceeding or concerns information required in that proceeding. The salient principle embodied in Article 29 is that the commencement of a local proceeding does not prevent or terminate the recognition of a foreign proceeding. This principle is essential for achieving the objectives of the Model Law in that it allows the court in the enacting State in all circumstances to provide relief in favour of the foreign proceeding.
Topics: Insolvency Law
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