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Sarah Clarke at Hardwicke Chambers looks at the new UNCITRAL Model Law on the Recognition and Enforcement of Insolvency Related Judgments and its potential impact on Re Gibbs and Ruben v Eurofinance, if it was adopted by the UK.
The UNCITRAL Model Law on the Recognition and Enforcement of Insolvency Related Judgments (the New Model Law) is intended to fill the gaps that currently exist in cross border conventions as they apply to the recognition and enforcement of judgments in insolvency proceedings.
In the UK, following the decision in Ruben v Eurofinance SA  UKSC 46, the Model Law on Insolvency is regarded as dealing with procedural matters, and does not extend to the recognition and enforcement of foreign judgments. It now is clear from the Guide to Enactment which accompanies the New Model Law, that UNCITRAL did not intend the Model Law on Insolvency to be so limited. In Article X to the New Model Law, UNCITRAL propose an additional provision to clarify that the relief available under Article 21 of the Model Law on Insolvency does include the recognition and enforcement of a judgment in order to reverse the effect of Ruben and judgments with similar effect in other states. As the UK has not yet taken legislative steps to adopt this proposed amendment, Ruben continues to be authority for the meaning and effect of the CBIR.
The New Model Law was approved by UNCITRAL on 2 July 2018 and endorsed by resolution of the General Assembly of the UN on 20 December 2018.
(i) explicit consent to jurisdiction by party
(ii) participation in proceedings by the party
(iii) the foreign originating court exercised jurisdiction on a basis upon which receiving court could have exercised jurisdiction; or
(iv) the originating court exercised jurisdiction on basis not incompatible with law of this state (see New Model Law, Article 14(g))
Supporters of the rule may therefore take comfort that the adoption of the New Model Law would not inevitably require the UK to say goodbye to Gibbs.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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