Singapore, U.K., Delaware, and New York Courts Adopt Guidelines for Communication and Cooperation Between Courts in Cross-Border Insolvency Matters
On February 1, 2017, the Supreme Court of Singapore and the U.S. Bankruptcy Court for the District of Delaware announced that they had formally implemented Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters (the "Guidelines"). The U.S. Bankruptcy Court for the Southern District of New York adopted the Guidelines on February 17, 2017. The Guidelines, as implemented by the Singapore Supreme Court, are available here. In the U.K., the Chancery Guide, which applies to chapter 25 ("The Bankruptcy and Companies Courts"), was amended on May 4, 2017, to include the Guidelines. They are set forth in Local Bankruptcy Rule 9029-2 in Delaware and General Order M-511 in New York.
The stated purpose of the Guidelines is "to improve the efficiency and effectiveness of cross-border insolvency proceedings and to enhance coordination and cooperation among courts under whose supervision such proceedings are being conducted." Their overarching objective is to improve efficiency in complex cases, which ideally will minimize litigation, time, and expense for the benefit of all stakeholders.
The Guidelines were developed by judges from several jurisdictions, including Australia, Bermuda, the British Virgin Islands, Canada, the Cayman Islands, England and Wales, Singapore, and the U.S., all of which participated in discussions at the initial meeting of the Judicial Insolvency Network convened in Singapore in October 2016. The Guidelines are noteworthy not only because they provide a framework for cooperation and communication in cross-border bankruptcy and insolvency proceedings, but because the initiative represents the first time that such a common framework has been adopted (and now implemented) by courts for that purpose. Previously, communication between courts involved in "parallel" bankruptcy or insolvency proceedings was often nonexistent or poorly coordinated, in many cases achieved by means of ad hoc protocols. This created significant delay and uncertainty and sometimes resulted in conflicting rulings from the courts involved.
In Singapore, the adoption of the Guidelines was part of an initiative designed to transform the country into a hub for international restructuring. Part of that initiative involves Singapore's enactment of a new corporate bankruptcy law, a brief discussion of which is available here. It is anticipated that the Guidelines will be implemented in other key jurisdictions, including the U.K., Australia, and the British Virgin Islands.
The Guidelines are briefly summarized below:
Guideline 1—Courts should encourage administrators in parallel bankruptcy or insolvency proceedings (e.g., liquidators, trustees, judicial managers, debtors-in-possession in reorganizations or schemes of arrangement, or any fiduciaries of the estate) to cooperate in all aspects of the cases.
Guideline 2—The Guidelines may be made applicable to a particular parallel proceeding (in whole or in part) if the court enters an order or protocol to that effect either upon the application of a party or on its own initiative.
Guideline 3—A protocol or order making the Guidelines applicable in a parallel proceeding should promote the efficient and timely administration of the proceedings.
Guideline 4—The Guidelines are not intended to: (i) interfere with the courts' jurisdiction over a proceeding; (ii) prevent a court from refusing to take an action that would be manifestly contrary to public policy or that would not sufficiently protect the interests of stakeholders; or (iii) alter substantive rights, interfere with any function or duty arising out of any applicable law, or encroach upon any applicable law.
Guideline 5—A protocol or order under the Guidelines is procedural and should not constitute a limitation on or waiver by the court of any powers, responsibilities, or authority, or a substantive determination of any matter in controversy, except to the extent specifically provided in such protocol or order.
Guideline 6—In interpreting the Guidelines or any related protocol or order, due regard shall be given to their international origin and the need to promote good faith and uniformity in their application.
Guideline 7—Courts presiding over parallel proceedings may communicate for the purpose of, among other things, rendering decisions and coordinating and resolving any procedural, administrative, or preliminary matters relating to joint hearings. Such communications may be in various forms, as may be agreed to by the courts.
Guideline 8—In connection with substantive communications between courts, unless directed otherwise by a court, parties may ordinarily be present, in which case advance notice of a communication shall be provided according to applicable rules. Communications shall be recorded and transcribed, with the transcription, which shall be available to the parties, serving as the official record.
Guideline 9—A court may direct that notice of its proceedings be given to parties in proceedings in another jurisdiction.
Guideline 10—A court may authorize a party, or an appropriate person, to appear before and be heard by a foreign court, subject to approval of the foreign court.
Guideline 11—A court may authorize a party to a foreign proceeding, or an appropriate person, to appear and be heard on a specific matter without thereby becoming subject to its jurisdiction for any purpose other than the specific matter in question.
Guideline 12—With certain exceptions, a court shall recognize and accept as authentic the provisions of statutes, regulations, and rules of court applicable to the proceedings in other jurisdictions without further proof.
Guideline 13—With certain exceptions, a court shall accept that orders made in the proceedings in other jurisdictions were duly and properly entered and shall accept that such orders require no further proof for purposes of the proceedings before it.
Guideline 14—Any protocol or order made under the Guidelines is subject to such amendments, modifications, and extensions as may be considered appropriate by the court consistent with the Guidelines and developments in the parallel proceedings.
Annex A—Setting forth guidelines on the conduct of joint hearings.
