INSOL protocol aims to reduce costs and administration by enabling recognition across borders

INSOL protocol aims to reduce costs and administration by enabling recognition across borders

Alan Bennett, partner at Ashfords LLP, assesses the legal effect of the Protocol (the protocol) published by the International Association of Restructuring, Insolvency & Bankruptcy Professionals (INSOL) for international recognition of insolvency proceedings affecting natural persons, its main proposals, and how it interacts with other insolvency provisions.

Original news

INSOL has published a new ‘protocol for international recognition of insolvency proceedings affecting natural persons’. The protocol was developed by INSOL Small Practice Issues Committee. INSOL expects the protocol will be useful for policymakers and legislators reviewing the long-term development of consumer insolvency legislation in their respective countries. The protocol can be viewed here.

What is the legal effect of the protocol?

The protocol consists of a series of proposals which serve as recommendations and broad principles for jurisdictions around the world that are looking to revise either their personal insolvency regime as a whole, or specifically cross-border elements of that regime. It therefore has no legal effect, and does not delve into specific mechanics. Rather it states anticipated outcomes in various aspects of cross-border personal insolvency, and allows individual jurisdictions to establish the mechanisms required to achieve that outcome.

It should be noted that many of the recommendations are based on existing law in various jurisdictions (including England and Wales). The protocol is an attempt to standardise best practice across jurisdictions. It is envisaged that this will provide clarity to debtors and creditors alike, and reduce costs and administration for all parties.

Who is the protocol aimed at, and when is it suggested it should be used?

The protocol is aimed at legislators as a framework to follow in revising the personal insolvency regime in their respective jurisdiction. It also provides guidance to national trade bodies (like R3 Association of Business Recovery Professionals in the UK) that may be assisting legislators. It is not aimed at individual insolvency practitioners, although it will be of interest to them if more jurisdictions apply the content.

How does the protocol interact with the United Nations Commission on International Trade Law (UNCITRAL) model law on insolvency and the Recast Regulation on Insolvency (EU) 2015/848?

The UNCITRAL model law on insolvency functions as the most influential cross-border insolvency law. However, it does have a number of limitations, particularly with regard to low-value personal insolvency as costs can be prohibitive. With i

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About the author:

Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.

Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.