2 . 1 . G E N E R AL

The states taking the co-operative approach to cross-border insolvency discussed ahove

are all part of the common law legal tradition. However, one should be very careful

in concluding that cross-border insolvency co-operation is not a suitable option for

states belonging to the civil law tradition. It may be true that civil law jurisdictions are

'generally distrustful of wide court discretion1 , but this does not mean that no room

for co-operation is left.1 ! The UNCITRAL Model Law (Model Law) illustrates that

open-ended cross-border insolvency co-operation must be considered feasible for civil

law jurisdictions as well. At the very least, as a global initiative, the Model Law is

expressly intended to be embraced by both legal traditions.1 '^ It is of great significance

that the Members of the drafting Commission and Working Croup on Insolvency Law

included several important representatives of the civil law tradition.1"' The Model Law

has therefore also been able to avoid the fate of an earlier attempt to arrive at a global

framework by the International Bar Association ( I B A ) : the Model International Insolvency

Co-operation Act (MIICA).1 1 1 1 Because of the dominant role of United States

lawyers in the IBA, the provisions of the MIICA remain very close to the provisions of the United States Bankruptcy Code 1978. The Model Act has therefore been

regarded as something of a ' T r o j a n horse' and has failed to receive anything like wide

international support.1 ,!

As important as the influence of the various legal traditions in the drafting of the

Model Law, is the contribution of the professional world. As an exponent of the new

paradigm of cross-border insolvency regulation, the Model Law's overall approach

relies heavily on active co-operation between the various officials and courts involved

in any given cross-border ease. It is therefore of particular importance that from the

beginning the Model Law has been developed in close consultation with both insolvency

practitioners as well as the judiciary. After the adoption of a resolution to investigate

'the desirability and feasibility of harmonised rules on cross-border insolvencies',

a j o i n t colloquium with INSOL, the international federation of insolvency professionals,

was held in 1 9 9 4 . ' ' Recognising that the success of any international approach

would depend on the judiciary, another joint colloquium was organised with the

specific purpose of obtaining the input of judiciaries from a wide range of countries. 1'

Subsequently, a Working Group on Insolvency was set up, which invited both INSOL

and the IBA to attend its sessions.1 1 1 In 1997 a Draft Model Law was presented for

scrutiny at a second UNCITRAL-INSOL Multinational Judicial Colloquium on Cross-

Border Insolvency. After further amendments, the Model Law was adopted later that

y e a r . " ' A finalised 'Guide to Enactment' could not be considered at the same time,

but on the basis of t he materials available the Commission mandated the publication

of the final version of the Guide together with the text of the Model Law as a single

document."" On 15 December 1997 the General Assembly adopted a resolution

recommending that states 'give favourable consideration to the Model Law, bearing

in mind the need for an internationally harmonized legislation governing instances

of cross-border insolvency'.11 had or were about to adopt the Model Law.1 ' " Likewise, in Australia the Model Law

is being considered for incorporation.1"'

Additional impetus for the adoption of the Model Law is provided by the International

Monetary Fund ( I M F ) and the World Bank. Both institutions consider insolvency law

reform to have an important role in strengthening a country's financial and economic

system. Both, moreover, encourage the adoption of the Model Law in order to promote

foreign private investment by ensuring an effective and fair framework in the event

of insolvency."'"