Cross Border Insolvency

The global nature of the financial, commercial, real estate and other markets presents a compelling need for attorneys and other professionals with an understanding of cross border bankruptcy law. Cross border insolvency laws present a complex landscape within which bankruptcy practitioners must navigate, with an eye towards conflicting bankruptcy regimes, class priorities, foreign substantive law, principles of comity and an array of other foreign bankruptcy and non-bankruptcy legal issues. Whether engaged by U.S. or foreign clients, Thomas H. Curran Associates’s expertise in this area is indispensable to bankruptcy trustees and creditors seeking to obtain ancillary relief in order to initiate investigations, recover assets, or otherwise protect their interests in U.S. or foreign insolvency and bankruptcy proceedings.

The UNCITRAL Model Law on Cross Border Insolvency (“UNCITRAL”) provides an express model statutory framework for adopting countries to enable cross-border recognition of insolvency proceedings that span multiple jurisdictions, which has become more frequent in today’s economy. Although UNCITRAL has been adopted and enacted in many countries (51 jurisdictions as of 2020)¹, there remains a lack of uniformity among the various bankruptcy regimes, which impacts the powers and procedures afforded U.S. bankruptcy trustees seeking recognition and relief in a foreign jurisdiction. Thus, despite the adoption of UNCITRAL’s cross-border provisions in Chapter 15 of the United States Bankruptcy Code and foreign locales reciprocal adoptions (e.g. in the U.S., U.K., Canada, Australia and Japan), much of western Europe, South America and elsewhere have not adopted UNCITRAL. This lack of uniformity requires counsel capable of handling often conflicting legal regimes, particularly as they relate to the U.S. Bankruptcy Code and American substantive and procedural law pertaining to recognition, international comity, standing, conflicts of laws, finality, discovery, avoidance, recovery and limitations periods, among many others.

Thomas H. Curran Associates’s lawyers bring their deep knowledge of and experience with U.S. bankruptcy law, state and federal substantive and procedural law, cross-border litigation, international principles of recognition, comity and ancillary proceedings to assist and advise clients faced with these challenging legal situations. The Firm has been engaged by trustees and creditors, often working with foreign counsel, foreign trustees, foreign bankruptcy professionals and international litigators, to lead and participate in cross border litigation in the U.K., Italy, Ireland, Cyprus, South Africa, Panama and elsewhere.

1: See https://uncitral.un.org/en/texts/insolvency/modellaw/cross-border_insolvency/status