2.4.2. Co-operation and C'oininnnieaiion

For effective co-operation to be a realistic objective, communication between the

various actors is of crucial importance. Consequently, the Model Law entitles courts

and representatives to communicate directly with foreign courts and representatives,

or to request information or assistance from them."" establishing direct channels of

communication is intended to avoid the use of time-consuming traditional procedures,

such as letters rogatory, in situations where time is of the essence.""

The exchange and disclosure of information is made more specific in the case of recognition

ot foreign proceedings. Upon application for recognition, the foreign representative

must identity all foreign proceedings in respect of the debtor which are

known to him or her. And from the moment of application for recognition of a proceeding,

s/he is under a duty to inform the court promptly of any substantial change

in the status of the recognised foreign proceeding or the status of the representative;

and any other foreign proceeding regarding the same debtor that becomes known to

the representative.''

Except in the context ot recognition of foreign main proceedings, the Model Law

refrains from prescribing the types of measures the required co-operation entails. The

Model Law allows for full discretion, providing that the co-operation required may

be implemented by 'any appropriate means'.'"" An indicative list is given as to types

of co-operation that are envisaged. The inclusion of such a list was thought particularly

helpful for those jurisdictions which have 'a limited tradition of direct cross-border

insolvency co-operation'. 1 ' The types of measures listed have all been drawn from person to act at the direction of the court, one is reminded of the 'Examiner with

expanded powers' appointed by the United States court in the Maxwell Communication

Corporation proceedings. Communication ot information by any means considered

appropriate calls to mind recent cross-border insolvency protocols, for instance in

the Laewen Groep Inc. proceedings. The approval or implementation by courts of

agreements concerning the co-ordination ot proceedings reflects the successful use

of protocols and concordats in various cross-border proceedings.

Nevertheless, the significance of these provisions should not be underestimated. On

the one hand, the 'command conveyed' on the courts simultaneously constitutes an

authorisation for courts to actually engage in co-operation. One of the main obstacles

for improvement under current law is that such mandates are absent in the laws of

many states. In particular, for states belonging to the civil law tradition, such pragmat

i sm may be felt to be inappropriate without sufficient basis in law. Articles 25 and

26 are therefore 'designed to overcome a widespread lack in national laws ot rules

providing a legal basis for cooperation by local courts with foreign courts'.1 1 On the

other hand, an unequivocal commitment to co-operation serves as a signal to the

courts and representatives of other states of the 'internationalist ethos' prevalent in

a state.'' ~ It specifically invites foreign courts and representatives to seek co-operation,

by expressing that the court will do anything in its power to make the expense of

seeking co-operation worthwhile.