The Problem of Local Methods in Cross-Border Insolvencies

A major and frequent criticism of the current cross-border insolvency framework is that international cooperation is likely to break down whenever significant local interests are at risk. The Model Law on Cross-Border Insolvencies, adopted in Chapter 15 of the Bankruptcy Code, and the commentary thereon have largely focused on such instances when states might be unwilling to cede control over local property, i.e., sovereignty-related problems. This article is the first to explore a separate set of problems in cross-border insolvencies that have little or nothing to do with sovereignty-related concerns. Cross-border insolvency law also faces acculturation problems as states attempt to synthesize the Model Law into already existing legal structures. Cultural differences between the Model Law and domestic laws may impede the Model Law’s goals of promoting legal certainty in this field. These cultural differences may include terminology and interpretation issues, as well as case management and procedural issues.This article examines two recent opinions from the Second Circuit Court of Appeals to illustrate these acculturation problems. It then considers the degree to which the Model Law (and Chapter 15) are currently equipped to minimize such defections. UNCITRAL, when drafting the Model Law, created a Guide to Enactment and Interpretation in order to promote consistent interpretation. I conclude that this Guide may be effective at dealing with some issues, but that it is ill-suited to address differences in the manner of interpretation.