1 . 1 . I N T R O D U C T I O N

What cross-border insolvency co-operation under the new paradigm actually entails

exactly is neither easily defined nor readily described in terms of conflicts of law. As

the approaches below will show, co-operation may involve anything from the simple

transfer of surplus ot proceeds to foreign insolvency proceedings, to courts and

representatives agreeing on a common course of action (for example reorganisation

of t he debtor, using either auxiliary or coequal proceedings), to the outright turnover

of assets to the foreign representative. The exact type of co-operation depends on what

the courts consider appropriate in the light of the facts of the case and the interests

of (all) the parties involved. The more fundamental point, it is submitted, is that crossborder

insolvency co-operation must be seen as a process. The above scenarios are

merely examples of possible outcomes of that process. Lssentially, cross-border

insolvency co-operation is the appreciation that cross-border insolvency requires

collective action by the jurisdictions involved - and that in each case, deliberation

should take place about what degree of assistance is necessary and possible while

respecting the overall legal standards and principles of the systems involved."

The discussions below do not by any means provide a detailed account of national

laws on cross-border insolvency. 1 Instead, the focus will be on showing that these

states have structured their approach to cross-border insolvency in a similar fashion.

As will become clear, none of the systems below provide for any clear effects of foreign

insolvencies. They rely on wide discretionary powers for their courts to determine these

effects in each particular case. Lqually common to these systems is the provision of

Cf. Fletcher, Insolvent) in I'nvnic International I on, I 009, 3o-L

A New Paradigm of C o - o p e r a t i o n I

As will become clear below, this single provision embodies much of the spirit - li'not

the essence - ot the co-operative paradigm of cross-border insolvency r e g u l a t i o n .'

However, reliance on co-operation in matters of insolvency did not become part of

the (continental) European tradition at this point. European cross-border insolvency

treaties opted tor the more conventional approach o f ' h a r d and fast' rules regarding,

the allocation ot jurisdiction, choice of law and recognition. T he Convention between

the States of Holland and Utrecht, dated 1 8 April 1689, may be considered anions; the

first ot these 'modern' treaties, predating similar treaties by almost a century.1 ' This

treaty provided that the court ot the debtor's domicile would be the iiidiciimnvticursiis

universale, even if the majority of creditors or the bulk of assets were located somewhere

e l s e . 1 ' In case of dispute as to the domicile of the debtor, the court of the debtor's

last residence had exclusive jurisdiction to resolve the matter.1'

Another striking antecedent of cross-border insolvency co-operation can be found

in the development ot United States domestic insolvency law, in particularthat relating

to reorganisation. A more detailed discussion will follow at a later stage, but a short

little (normative) guidance tor their courts to decide whether and in what manner they

should co operate with foreign proceedings.