2 . 2 . N A T U R E O F M O D E L L AW A N D I M P L E M E N T A T I O N

The Model I.aw is not a binding instrument. It needs to be incorporated into national

law by individual states. States are in principle free to make any modifications they

think necessary. However, the Guide stresses the significance of uniformity and recommends

'that the States make as few changes as possible in incorporating the model law

into their legal systems'. Therefore, 'the flexibility ( . . . ) should be utilized with due

consideration for the need of uniformity in its interpretation and for the benefits to

the enacting State in adopting modern, generally acceptable international practices

in insolvency m a t t e r s ' . 1 " In further support of uniformity, the Model Law will be

included in the system for collecting and disseminating information on 'Case Law on

UNCITRAL T e x t s ' , also known a s C L O U T . " "

As a model law, States are not required to notify enactment to the United Nations or

to other States that may also have enacted it. T h e exact state of affairs concerning the

adoption of the Model Law is therefore somewhat difficult to ascertain, but the

following should be mentioned. The Model Law has already been adopted by South

Africa1 ""'and M e x i c o " 1 , and Eritrea, Japan, M o n t e n e g r o " , Poland1 'and R o m a n i a " 1

have introduced legislation based on the Model Law. In the United States the incorporation

of the Model Law in the Bankruptcy ( ' o d e is envisaged by the Bankruptcy

Abuse Prevention and Consumer Protection Act 2 0 0 5 . ' " In the United Kingdom

legislation has been passed to make incorporation of the Model Law possible by

secondary regulation."" In Argentina a Bill has been sent to Parliament." In New

Zealand the Law Commission published a report on the issue in 1999, recommending

that New Zealand should adopt the Model Law if a sufficient number of other states

Although the Guide to Enactment notes that the preamble is to be considered an

important tool for interpretation of the Law's provisions and scheme, two observations

mav be made at the outset.1" On the one hand, the Model Law does more than

merely provide mechanisms to promote co-operation. From a global point of view

'promotion' might be the appropriate term, but it should not be overlooked that the

Model Law does so by having states prescribe co-operation; it aims at a general and

mutual rfutv of co-operation to be imposed on all court sand representatives involved.

On the other hand, where the preamble includes the objective of'greater legal certainty

for trade and investment', it may rightly be asked whether this is strictly speaking true,

considering the essentially open-ended and flexible nature of the Model Law's

provisions.1 '"