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1. Introduction The nature and purpose of the ALI-III Transnational Insolvency Project.

Shaping Rules of Cooperation in International Insolvency Professor Ian Fletcher Faculty of Laws, UCL. The American Law Institute and the International I nsolvency Institute: Transnational Insolvency Project. A Report on the Final Report April 19, 2012.

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1. Introduction The nature and purpose of the ALI-III Transnational Insolvency Project.

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  1. Shaping Rules of Cooperation in International Insolvency Professor Ian FletcherFaculty of Laws, UCL The American Law Institute and the International Insolvency Institute: Transnational Insolvency Project. A Report on the Final Report April 19, 2012

  2. 1. IntroductionThe nature and purpose of the ALI-III Transnational Insolvency Project. • “dissemination and extension project” • to establish acceptance of the ALI’s Principles of Cooperation among the NAFTA Countries (2000) in jurisdictions across the world • Conducted on behalf of the ALI and III, the Joint Reporters are Ian Fletcher (UCL) and Bob Wessels (Leiden University). • Project undertaken between 2006 and 2012. Final Report entitled: “Global Principles for Cooperation in International Insolvency Cases”

  3. 2. Background: the ALI NAFTA Insolvency Project (1993-2000) • Project undertaken in response to the conclusion of the North American Free Trade Agreement (NAFTA) in December 1992 between Canada, Mexico and the United States of America. U.S. Reporter was Professor Jay L. Westbrook. • Report published in 4 volumes. • 3 volumes contain “International Statements” of each of the three NAFTA countries. • Volume 4, subtitled “Principles of Cooperation among the NAFTA Countries” provides the basis for the ALI-III Transnational Insolvency Project, to develop Global Principles for Cooperation.

  4. 3. New Initiative 2006: the ALI-III Global Principles Project • Making a start (2006): Defining the Objectives • Festina lente! (2006-2012) • Working methods • The closing phase (2010-2012)

  5. 4. The Shape of the Final Report • 37 Global Principles for Cooperation in International Insolvency Cases • 18 Global Guidelines for Court-to-Court Communication in International Insolvency Cases • 23 proposed Global Rules on Conflict of Laws Matters in International Insolvency Cases • Plus Reporters’ Notes and Comments, Glossary of Terms and Descriptions, and Bibliography. • The Report is awaiting consideration by the Annual Meeting of the ALI in Washington DC on 23 May 2012. It will subsequently be considered by the membership of III at their International Insolvency Conference in Paris on June 22. Prior to these events, the Report remains an internal document of the two organisations concerned. It is therefore to be treated as restricted material for the time being.

  6. 5. Selected Provisions from the Report: Remarks and Comments. • NOTE: RESTRICTED MATERIALS • The materials made available at this research seminar represent the Joint Reporters’ current position as contained in the Proposed Final Draft of our Report currently awaiting consideration by the membership of the American Insolvency Institute. At this stage, the text has been reviewed by the Council of the Institute (in January 2012) as a Council Draft, and it will be submitted for consideration by the membership at the Institute’s Annual Meeting in May 2012. Until such consideration by the membership has taken place, and conditional upon the outcome of that, the text does not represent the position of the Institute on any of the issues with which it deals. The selected portions of the text are here made available on a restricted basis only for the purpose of discussion at this seminar. They should not be cited or quoted without the Reporters’ express permission.

  7. (a) Global Principles for Cooperation in International Insolvency Cases • Principles 1-3 (Overriding Objective; Aim; International Status and Public Policy). • Principle 5 (Equality of Arms). • Principle 7 (Recognition), with Principles 13 (International Jurisdiction) and 14 (Alternative Jurisdiction). • Principle 23 (Communications between Courts; Intermediaries).

  8. (b) The Global Guidelines for Court-to-Court Communication in International Insolvency Cases • General comment.

  9. (c) Global Rules on Conflict of Laws Matters in International Insolvency Cases • Rule 1 (Scope). • Rule 4 (Interpretation). • Rules 12-14 (Applicable Law – General Rules). • Rules 15-18 (Rights of Secured Creditors; Set-Off Rules). • Rules 21-23 (Avoidance of Detrimental Acts; Exception).

  10. 6. Quo vadis? • Question: Should the Insolvency Service examine ways in which it could promote professional awareness of the contents of the Global Principles Report (e.g. via its website, or in information provided to IP’s?)

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