Section on Insolvency, Restructuring and Creditor's Rights Projects

MIICA
The IBA Concordat
The UNCITRAL Model Law on Cross-Border Insolvency
The UNCITRAL Legislative Guide on Insolvency Law
Current UNCITRAL project on the insolvency of corporate groups

MIICA

In the mid 1980s, the Section’s predecessor, former Committee J initiated a multi-country effort to draft the Model International Insolvency Cooperation Act (MIICA).  MIICA was adopted by the former Section of Business Law and later by the IBA. 

The IBA Concordat

MIICA was followed in the early 1990s with the Committee J Concordat, the precursor of modern cross-border court-to-court protocols.  The Concordat was first adopted by Committee J, then by the former Section of Business Law and finally by the IBA. 

The UNCITRAL Model Law on Cross-Border Insolvency

MIICA and the Concordat formed part of the impetus for an effort by UNCITRAL to develop a model cross border law for the recognition of insolvency decrees and the cross border coordination of related insolvency cases pending in different national jurisdictions.  A number of Section members were involved in this project from the initial organization meeting through its adoption by the United Nations General Assembly.  The UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment (the Model Law) was put forward by the former Section of Business Law and adopted by the IBA in the late 1990s.  The Model Law is designed to assist nations to equip their insolvency laws with a modern, harmonized and fair framework to address more effectively instances of cross-border insolvency. Those instances include cases where the insolvent debtor has assets in more than one nation or where some of the creditors of the debtor are not from the nation where the insolvency proceeding is taking place. The Model Law respects the differences among national procedural laws and does not attempt a substantive unification of insolvency law. It offers solutions that help in several significant ways, including: foreign assistance for an insolvency proceeding taking place in the enacting nation; foreign representative's access to courts of the enacting nation; recognition of foreign proceedings; cross-border cooperation; and coordination of concurrent proceedings.

The Model Law is rapidly becoming the de facto statutory mechanism for cross border recognition of insolvency decrees and coordination of cross border insolvency cases.  Legislation based on the Model Law has been adopted in: Eritrea, Japan (2000), Mexico (2000), Poland (2003),  Romania (2003), Montenegro (2002), Serbia (2004); South Africa (2000), Great Britain (2006), British Virgin Islands, overseas territory of the United Kingdom of Great Britain and Northern Ireland (2005), and United States of America (2005).  Click here for the full text of the Model Law.

The UNCITRAL Legislative Guide on Insolvency Law

The UNCITRAL Legislative Guide on Insolvency Law (the Guide) was a follow on project to the Model Law.  The consensus result of four and one-half years of work by UNCITRAL Working Group V is a comprehensive work of real practical value.  The Guide covers all aspects of formal bankruptcy and reorganization proceedings as well as out of court mechanisms for restructuring debt. 

The Section can be justly proud to have played an integral role in the development and drafting of the Guide.  Section members were active from the 1999 organizational session on through to the adoption of the Guide by the Commission in June of 2004.  The IBA sponsored the Colloquium in 2000 where Section members chaired the lead off  panel presentation.  Section members served on the expert drafting team that authored the original text presented at the first formal session of the Working Group and thereafter, between sessions, assisted the Secretariat in revising the text to reflect decisions taken by the Working Group.  The Section staffed each semi-annual Working Group session with at least two members.  During June 2004, Section members worked down to the wire at the Commission meeting to finalize the Guide for adoption by the Commission and presentation to the General Assembly.  In December 2004, the General Assembly of the United Nations adopted the text of the Guide. 

In May of 2005, the Section sponsored a resolution to endorse the UNCITRAL Legislative Guide on Insolvency Law which was approved by the LPD Council and the full IBA Council in Lisbon.
The Guide is already being used in several nations’ legislative reform efforts, and it now forms part of a unified standard to be used by the World Bank in carrying out assessments under the joint IMF-World Bank programme to evaluate the financial sectors of client nations.  Click here for the full text of the Guide.

The Section’s UNCITRAL Liaison and its Subcommittee on Insolvency Legislation and Legislative Reform and Harmonization will staff the IBA’s representation on this project.