Abstract
This chapter analyses: (a) how the manner of enactment in the States under consideration affects the terms and meaning of the Model Law; (b) how the insertion of the Model Law by Canada and the USA into their existing domestic legislation has required those States to make it consistent with their domestic insolvency provisions. This is reflected in the inconsistent way that the Model Law has been enacted in those States; and (c) whether in States where the substance of the legislation does not vary from the Model Law; the differences in the legislation can be overcome by the courts relying upon the interpretative provisions in Article 8 of the Model Law.
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- 1.
See, eg, Article 21 of the Model Law allows a foreign representative to conduct examinations; however sections 596A–596F of the Corporations Act 2001 (Cth) and the Supreme Courts and Federal Court Corporations Rules made under that Act set out the procedural aspects of how to summon a person and the procedures for conducting an examination.
- 2.
Ackers v Saad Investments Company Limited (in liq) (2010) 190 FCR 285, 295, [45] referring to Vienna Convention on the Law of Treaties 1969, opened for signature 30 November 1969, [1974] ATS 2 (entered into force in Australia 27 January 1980); Gainsford v Tannenbaum (2012) 293 ALR 699, 707 [37].
- 3.
Marcia Jones, Library of Parliament (Can) ‘Bill C-12: An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act, the Wage Earner Protection Program Act and chapter 47 of the Statutes of Canada, 2005’ (Legislative Summary No LS-584E, Parliament of Canada, 14 December 2007) 29.
- 4.
An Act to Amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act, the Wage Earner Protection Program Act and Chapter 47 of the Statutes of Canada, SC, 2005, c C-47.
- 5.
Companies Creditors Arrangement Act, RSC 1985, c C-36.
- 6.
Bankruptcy and Insolvency Act, RSC 1985, c B-3.
- 7.
This Act was deemed approved at all stages by the House of Commons pursuant to an order made on 25 October 2007. See LEGISinfo, Library of Parliament (Can), House Government Bill—39th Parliament, 2nd Session: October 16, 2007—September 7: C-12: An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act, the Wage Earner Protection Program Act and chapter 47 of the Statutes of Canada, 2005, Parliament of Canada, <http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Bill=C12&Language=E&Mode=1&Parl=39&Ses=2&View=0>.
- 8.
Companies Creditors Arrangement Act, RSC 1985, c C-36 ss 44–61; Bankruptcy and Insolvency Act, RSC 1985, c B-3 ss 267–284.
- 9.
Articles 3, 4, 7, 8, 10, 11, 12, 13, 14, 22, 24 and 31 are not replicated in the Canadian version of the Model Law.
- 10.
See, eg, Canada Parliamentary Debates, House of Commons Debates, 9 October 2007, 1509, 1515, (Peter Milliken). <http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Hansard&Doc=171&Parl=39&Ses=1&Language=E&Mode=1>; Standing Senate Committee on Banking Trade and Commerce, Parliament of Canada, Seventeenth Report of the 38th Parliament (2005), <http://www.parl.gc.ca/Content/SEN/Committee/381/bank/rep/rep17nov05-e.htm>, Standing Senate Committee on Banking Trade and Commerce, Parliaments of Canada, Fifth Report of the 40th Parliament ( 2007), does not mention the cross-border provisions, <http://www.parl.gc.ca/Content/SEN/Committee/392/bank/rep/rep05dec07-e.htm>.
- 11.
The Act deals with debtors and their affiliated companies where their debts exceed Canadian $5 million and foreign corporations with assets or businesses in Canada; see Steven Goldick and Marc Wasserman, ‘Canada’ in Look Chan Ho (ed) Cross-Border Insolvency, A Commentary on the UNCITRAL Model Law (Global Law and Business, 3rd ed, 2012), 76; Janis Sarra, ‘Northern Lights, Canada’s Version of the UNCITRAL Model Law on Cross-Border Insolvency’ (2007) 16 International Insolvency Review 19, 22.
- 12.
ATB Financial v Metcalfe & Mansfield Alternative Investments II Corp (2008) 45 CBR (5th) 163, [44], [61].
- 13.
Century Services Inc v Canada [2010] 3 SCR 379, 394 [15].
- 14.
Re Nortel Networks Corporation (2009) 55 CBR (5th) 229 [28].
- 15.
Jassmine Girgis, ‘Corporate Restructuring, the Evolution of Corporate Assets and the Public Interest’ (2013) 22 International Insolvency Review <http://0-onlinelibrary.wiley.com.library.vu.edu.au/journal/10.1002/(ISSN)1099-1107/earlyview> (last viewed 1 March 2013).
- 16.
Century Services Inc v Canada [2010] 3 SCR 379, 394 [15].
- 17.
Jacob Ziegel, ‘Canada- United States Cross Border Insolvency Relations and the Uncitral Model Law’ (2007) 32 Brooklyn Journal of International Law 1041, 1055–61.
- 18.
Insolvency (Cross-border) Act 2006 ss 3, 8.
- 19.
Ibid s 10.
- 20.
Ibid s 5(1)(b).
- 21.
Insolvency Act 2000 c39 s 14(1).
- 22.
Cross-Border Insolvency Regulations 2006 SR 2006/1030.
- 23.
Insolvency Act 1986 c45 s 426.
- 24.
Cross-Border Insolvency Regulations 2006 reg 2(2).
- 25.
See generally Fibria Celulose S/A v Pan Ocean Co Ltd [2014] EWHC 2124 (Ch) (30 June 2014) [88].
- 26.
Treaty on Functioning of the European Union [2010] OJ C 83/49, Article 16, 223.
- 27.
Pub Law No 109-8, 119 Stat 23 (2005).
- 28.
11 USC § 304.
- 29.
Daniel M Glosband et al., ‘The American Bankruptcy Institute Guide to Cross-Border Insolvency in the United States’ (American Bankruptcy Institute, 2008), 89. They comment that the inclusion of section 362(n) was a legislative error as the exception was intended to cover provisions excepting financial contracts from the automatic stay.
- 30.
Re Barnet, 737 F 3d 238 (2nd Cir, 2013); 11 USC § 109 (a).
- 31.
See Re Octaviar Administration Pty Ltd, 511 BR 361 (Bankr, SD NY, 2014).
- 32.
Elizabeth J Gerber, ‘Not All Politics Is Local: The New Chapter 15 to Govern Cross-Border Insolvencies’ (2003) 71 Fordham Law Review 2051, 2084–6.
- 33.
US House of Representatives Committee on the Judiciary, Bankruptcy Abuse Prevention and Consumer Protection Act (8 April 2005), HR Report Pub L No 109–31, 106 n 101; Re Fairfield Sentry Ltd 714 F 3d 127 (2nd Cir 2013) 132.
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Hannan, N. (2017). Manner of Introduction of the Model Law. In: Cross-Border Insolvency. Springer, Singapore. https://doi.org/10.1007/978-981-10-5876-9_3
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