The Implementation of the Model Law on Cross-Border Insolvency: International Divergences and Challenges Ahead
By Aurelio Gurrea-Martinez (Singapore Management University)[1]
Synopsis
The Model Law on Cross-Border Insolvency (‘MLCBI’) was enacted by the United Nations Commission on International Trade Law (‘UNCITRAL’) in 1997. Since then, it has been adopted by 62 jurisdictions and has led to many debates and interpretations about its potential, scope and limits. This article provides a general overview of some of the international divergences existing in the implementation of the MLCBI across jurisdictions. It also discusses some of the challenges that need to be overcome to make the MLCBI a more effective tool to deal with cross-border insolvency.
1. The MLCBI
In a global world where many businesses have assets, creditors, offices and employees in different jurisdictions, an instrument that facilitates cooperation in insolvency proceedings with a transnational element is particularly needed. By enacting the MLCBI in 1997, UNCITRAL came up with such an instrument. The MLCBI embraces the idea of ‘modified universalism’. Under this principle, there is a single foreign main proceeding initiated in the place of the debtor’s centre of main interests (‘COMI’), even though non-main proceedings can be opened in places where the debtor has an ‘establishment’, and the laws of other jurisdictions can be relevant for certain aspects of the procedure given that the MLCBI is silent on applicable law.
As of the end of 2023, the MLCBI has been adopted by 62 jurisdictions.[2] Early adopters include Japan, South Africa and Mexico,[3] and some of the most recent signatories comprise Ghana, Myanmar, Brazil and Saudi Arabia.[4] While the MLCBI has been adopted by all types of jurisdictions, including both emerging markets and developing economies (‘EMDEs’) and advanced economies such as Australia, Singapore, the United Kingdom and the United States, some of the world’s largest EMDEs, including China, India, Indonesia, Nigeria and Russia, have not yet adopted the MLCBI.[5] That should encourage the international insolvency community to assess whether the MLCBI is really suitable for EMDEs. In fact, after the lessons learnt in the past 27 years, perhaps it is time to consider whether the MLCBI might need some refinements to help it become a more attractive tool not only to the signatories of the MLCBI, but also to other jurisdictions currently reluctant to adopt it.
2. International divergences in the implementation of the MLCBI
2.1 The concept of ‘foreign proceeding’
Under the MLCBI enacted by UNCITRAL, a ‘foreign proceeding’ is defined as a ‘collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganisation or liquidation.’[6] Despite this general definition, a ‘foreign proceeding’ has been defined and interpreted differently among the jurisdictions that have adopted the MLCBI. For instance, in countries such as the United States and Singapore, the definition of a ‘foreign proceeding’ not only includes those regulated by a ‘law relating to insolvency’ but also by laws facilitating the ‘adjustment of debt’.[7] Therefore, countries embracing this latter approach have adopted a broader definition of a foreign proceeding that may include procedures dealing with solvent companies, such as hybrid procedures like the scheme of arrangement,[8] formal reorganisation procedures that do not necessarily require a financial condition for the initiation of the procedure,[9] and even solvent liquidations.[10] In other jurisdictions such as the United Kingdom, however, where the MLCBI has been adopted in a narrower manner and only refers to procedures regulated by a law relating to insolvency as mentioned in the MLCBI, the existence of insolvency or financial distress is required.[11]
2.2 Types of debtors eligible for recognition under the MLCBI
The MLCBI is silent about the type of debtors that are allowed to seek recognition. For this reason, countries that have implemented the MLCBI have adopted different approaches. For instance, while some jurisdictions, such as Singapore, only allow corporate debtors to seek recognition under the MLCBI,[12] some non-corporate entities, such as business trusts, can be recognised under the MLCBI as adopted in the United Kingdom and the United States.[13]
2.3 The concept of ‘COMI’
The MLCBI does not define the concept of COMI. However, it establishes that, ‘[i]n the absence of proof to the contrary, the debtor’s registered office, or habitual residence in the case of an individual, is presumed to be the centre of the debtor’s main interests’.[14] Therefore, the starting point to determine the debtor’s COMI is the place of the debtor’s registered office. In some jurisdictions, such as the United Kingdom, Australia and the European Union, the use of the registered office as the place of the debtor’s COMI has been understood as a relatively strong presumption.[15] In other countries, such as Singapore and the United States, the presumption can be more easily rebutted if it is shown that the debtor’s business decisions are made in another place that is ascertainable by third parties.[16]
Additionally, countries around the world have adopted different approaches to determine when the concept of COMI should be assessed. For instance, while the United States and Singapore determine the COMI based on the date of the filing of the application for recognition, the United Kingdom and Australia use the date of the filing of the foreign proceedings and the date of the hearing of the recognition application, respectively, as the relevant dates to determine the debtor’s COMI.[17]
2.4 The implementation of the ‘public policy’ exception
To encourage countries to adopt the MLCBI without requiring them to recognise procedures or decisions that might contravene their local public policy, the MLCBI establishes that ‘[n]othing in this Law prevents the court from refusing to take an action governed by this Law if the action would be manifestly contrary to the public policy of this State.’[18] Therefore, countries can refuse to take actions to facilitate the recognition or enforcement of a foreign procedure if it contravenes their local public policy.
While the ‘public policy’ exception generally includes violations of fundamental rights, including due process, the concept of ‘public policy’ and the implementation of the public policy exception established under the MLCBI differ across jurisdictions. In some countries, such as the United States, the United Kingdom, and Australia, the public policy exception has been adopted in the same terms as in the MLCBI. Therefore, the existence of the word ‘manifestly’ has led to a restrictive interpretation of the public policy exception that favours a wider recognition of foreign procedures. Nonetheless, several countries around the world, including Canada,[19] Chile,[20] Japan,[21] Korea[22] and Singapore,[23] have omitted the word ‘manifestly’ in their adoption of the public policy exception. Changing the default rule provided by UNCITRAL seems to be a deliberate action by the legislature in those countries. Therefore, countries that have omitted the word manifestly are expected to require a lower threshold for refusing recognition. In fact, this is how such omission has been traditionally interpreted in countries like Singapore.[24] Interestingly, however, a recent decision of the Singapore International Commercial Court (‘SICC’) clarifies that the omission of the word ‘manifestly’ in the MLCBI as adopted in Singapore does not indicate a lower threshold for the ‘public policy’ exception to apply.[25] Moreover, it provides a non-exhaustive list of situations where challenges brought against the recognition of a procedure on the basis that it violates the public policy of Singapore are expected to succeed.[26] The SICC recognises that a strict interpretation of the public policy exception (even if the word ‘manifestly’ is omitted) is more consistent with the notion of comity and the principle of modified universalism embraced by the MLCBI.[27]
2.5 The concept of ‘establishment’
The concept of ‘establishment’ under the MLCBI, which is essential for the recognition of non-main proceedings, is defined as ‘any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services’.[28] Nonetheless, this concept has also been implemented and interpreted differently across jurisdictions. For example, Singapore has adopted a definition of establishment that requires debtors to have property or at least to carry out a non-transitory economic activity with human means and property or services.[29] Other jurisdictions, such as the United States, define establishment as ‘any place of operations where the debtor carries out a nontransitory economic activity’.[30] Therefore, by omitting the requirement of the ‘human means and goods or services’ established under the MLCBI and the ‘property’ required in Singapore, the United States allows the recognition of non-main proceedings more easily.
2.6 Types of relief obtained under the MLCBI
When a foreign main proceeding is recognised, most jurisdictions allow debtors to automatically obtain a stay, as established under the MLCBI.[31] Interestingly, however, jurisdictions like Japan and Korea do not provide such an automatic stay.[32] Additionally, the scope of the stay often depends on both the implementation of the MLCBI or the features of the stay under a country’s local insolvency laws.
Other divergences can be found in the types of ‘additional relief’ that can be granted upon recognition of a foreign proceeding.[33] In the original text of the MLCBI enacted by UNCITRAL, and in certain countries that have adopted the MLCBI, these types of relief only include those available under the laws of the state granting recognition.[34] However, in some jurisdictions, such as the United States and Singapore, the reference to their local laws has been omitted.[35] This omission has allowed courts in these countries to apply laws from other jurisdictions.[36] It has also allowed these jurisdictions to enforce insolvency-related judgments, which is something that has been specifically rejected in the United Kingdom.[37] In fact, the position of the United Kingdom in this matter, and more generally the inconsistent approaches to the interpretation of the MLCBI in this area, encouraged UNCITRAL to work on a text that eventually became the Model Law on Recognition and Enforcement of Insolvency-Related Judgments, which was enacted in 2018.[38]
2.7 Applicable law and the rule in Gibbs
The MLCBI is silent on applicable law. This has led to different interpretations of the MLCBI. For instance, while countries such as the United Kingdom have adopted a more ‘territorialist’ approach which has led to a significant reliance on UK law, other jurisdictions, such as the United States, have adopted a more global approach in which the laws of other jurisdictions can often be used for relevant aspects of the procedure.[39] Additionally, the absence of clear rules on the law applicable to the discharge or modification of debts has allowed certain jurisdictions that have adopted the MLCBI, such as the United Kingdom, to preserve the rule in Gibbs.[40] Under this rule, the discharge or modification of a debt is not effective unless it is in accordance with the law governing the debt.[41] Therefore, a creditor cannot be bound by a reorganisation plan that takes place in a jurisdiction that is not the one governing its debt contract unless the creditor voluntarily submits to the jurisdiction of the foreign court handling the insolvency or restructuring procedure.[42] Hence, the existence of this rule prevents the use of a single procedure for the purpose of conducting a holistic debt restructuring, thereby increasing the costs of insolvency proceedings.[43]
3. Challenges ahead
The adoption of the MLCBI can make a country’s insolvency framework more equipped to deal with insolvency proceedings with a cross-border element.[44] As this article has shown, however, the MLCBI has been implemented very differently around the world. That is not necessarily undesirable. In fact, it is somehow needed. On the one hand, providing a minimum degree of flexibility is the only way to encourage countries with very different legal, economic and institutional environments to adopt international instruments such as the MLCBI. On the other hand, divergences in the implementation of the MLCBI can allow countries to observe, test and compare different practices and ultimately determine which ones can be more or less desirable. Yet, to effectively deal with cross-border insolvency, there are certain aspects in which the MLCBI can be improved and provide a greater level of harmonisation and predictability.
First, the concept of COMI should be revisited. As mentioned in an open letter sent to UNCITRAL, the concept of COMI presents some flaws which lead to uncertainty, litigation costs and the opportunistic choice or change of insolvency forum.[45] Additionally, the significant divergences in the implementation and interpretation of the concept of COMI, along with the lack of a ‘universal court of appeal’ – akin to the Court of Justice of the European Union within the EU – which can harmonise how and when to determine the concept of COMI, exacerbate some of the problems of uncertainty created by this concept. For these reasons, as well as the detrimental effects that the concept of COMI may have for companies based in countries with inefficient insolvency systems,[46] replacing the concept of COMI with a pre-selected insolvency forum coupled with the adoption of certain safeguards to prevent the opportunistic choice or change of insolvency forum can provide a more desirable solution.[47]
Second, the MLCBI needs to deal with applicable law. While UNCITRAL is working on a text which seeks to provide a harmonised approach to the law applicable to insolvency proceedings,[48] the only way to ensure that those rules are applied uniformly across jurisdictions is by adopting them in the MLCBI. Otherwise, many countries might not adopt the new rules on applicable law eventually approved by UNCITRAL, as has been observed with the Model Law on Enterprise Group Insolvency and the Model Law on Recognition and Enforcement of Insolvency-Related Judgments. Moreover, those harmonised rules on applicable law should clearly establish that, with very limited exceptions (for example, for employees’ claims), the modification or discharge of debts will be subject to the lex fori concursus – that is, the law of the place where the proceeding has been opened. Therefore, there should be no space for the rule in Gibbs in countries that have adopted the MLCBI, especially if the concept of COMI is replaced by the proposed ‘Commitment Rule’ that would allow companies to choose the insolvency forum and therefore the lex fori concursus.[49]
In addition to these amendments to the MLCBI, a greater level of cooperation in cross-border insolvency seems to be needed to maximise the potential of the MLCBI. To achieve this goal, countries should implement the Model Law on Recognition and Enforcement of Insolvency-Related Judgments, or at least adopt the flexible approach on this matter observed in countries such as Singapore and the United States. Additionally, insolvency courts that are not yet part of the Judicial Insolvency Network (‘JIN’) should ideally be involved – at least as observers – in the activities of this organisation and adopt the principles of court-to-court communication (‘JIN Guidelines’), and the mechanics for initiating, receiving and engaging in such communication (‘Modalities’) published by this network of insolvency judges.[50] Finally, countries – particularly those that have not yet adopted the MLCBI – should promote other forms of cooperation, such as the use of bilateral agreements and cross-border insolvency protocols.[51]
4. Conclusion
This article has shown some of the international divergences existing in the implementation of the MLCBI. It has also emphasised various weaknesses of the MLCBI and some amendments that UNCITRAL should consider for the improvement of this valuable instrument to deal with cross-border insolvency. The implementation of these changes, along with the increasing adoption of the JIN Guidelines and Modalities, can make the MLCBI a more effective, predictable and efficient mechanism to facilitate the successful resolution of a situation of cross-border insolvency.
* This article appeared in Volume 21, Issue 3 of International Corporate Rescue and is reprinted with the permission of Chase Cambria Publishing – http://www.chasecambria.com. The original publication can be found here and here.
[1] For excellent research assistance, I would like to thank Linus Koh and Jonathan Cheong.
[2] UNCITRAL, ‘Status: UNCITRAL Model Law on Cross-Border Insolvency (1997)’ <http://uncitral.un.org/en/texts/insolvency/modellaw/ cross-border_insolvency/status>, 18 January 2024 (last accessed).
[3] Mexico, Japan and South Africa adopted the MLCBI in 2000. See UNCITRAL, ‘Status’ (n 2).
[4] Saudi Arabia adopted the MLCBI in 2022, and Ghana, Myanmar and Brazil in 2020. See UNCITRAL, ‘Status’ (n 2). For an overview of how the MLCBI has played out in Brazil so far, see Kate Stephenson, ‘Cross-Border Recognition of Restructuring Proceedings: State of the Market’ (2023) INSOL International Technical Paper Series No. 61 at para. 3.6.
[5] Noting, more than a decade ago, that some of the world’s emerging economies were missing among the signatories of the MLCBI, see Steven Kargman, ‘Emerging economies and cross-border insolvency regimes: missing BRICs in the international insolvency architecture (Part I)’ (2012) 6(2) International and Restructuring International 8. Since then, the situation has not changed significantly. Among the BRICS economies, only South Africa and Brazil have adopted the MLCBI.
[6] MLCBI, Art 2(a).
[7] For the definition of ‘foreign proceeding’ in the United States, see 11 USC §101(23). In Singapore, see Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (‘IRDA’), Third Schedule, Art 2(h).
[8] The scheme of arrangement existing in most Commonwealth jurisdictions does not require any particular financial condition for the initiation of the procedure.
[9] An example of this procedure is the US Chapter 11. Nonetheless, while no financial conditions are formally required for the initiation of the procedure, a US Chapter 11 procedure can be dismissed if the court finds that the procedure was not filed in good faith, and the lack of financial distress can be one of the reasons considered by the court to determine that it was not a filing in good faith. See, e.g., Fields Station LLC v Capitol Food Corp. (In re Capitol Food Corp.), 490 F.3d 21 (citing Integrated Telecom, SGL Carbon, Liberate Techs, Coastal Cable and others). More recently, in the Johnson & Johnson case, see In re: LTL Management LLC (3d Cir. 2023).
[10] In the United States, see Re Betcorp Ltd (in liquidation) 400 BR 266 (Nevada US Bankruptcy Court, 2009) and In re Global Cord Blood Corp 2022 WL 17478530 (NYSD US Bankruptcy Court). In Singapore, see Ascentra Holdings, Inc (in official liquidation) v SPGK Pte Ltd [2023] 2 SLR 421 (CA). This may be contrasted with the position in the United Kingdom in Re Sturgeon Central Asia Balanced Fund Ltd (in liquidation) [2020] EWHC 123 (Ch), where the court held that ‘the foreign proceedings in respect of which recognition was sought had to relate to the resolution of the debtor’s insolvency or financial distress.’ For an overview of the current state of the debate on the recognition of foreign insolvency and restructuring proceedings, see Kate Stephenson, ‘Cross-Border Recognition of Restructuring Proceedings: State of the Market’ (2023) INSOL International Technical Paper Series No. 61.
[11] See Sturgeon Central Asia Balanced Fund Ltd (in liquidation) [2020] EWHC 123 (Ch).
[12] Re Tantleff, Alan [2023] 3 SLR 250 (HC).
[13] For the position in the United Kingdom, see Rubin and another v Eurofinance SA and others [2010] 1 All ER (Comm) 81. In the United States, see In re EHT US1, Inc 630 BR 410 (Bankr D Del, 2021).
[14] MLCBI, Art 16(3).
[15] See Re Stanford International Bank Ltd and others [2009] EWHC 1441 (Ch) for the position in the United Kingdom. In Australia, see Ackers v Saad Investments Company Limited (in official liquidation) [2010] FCA 1221. In the European Union, see In re Eurofood IFSC Ltd (Case C-341/04) [2006] 1 Ch 508.
[16] See Re Zetta Jet Pte Ltd and others [2019] 4 SLR 1343 (HC) for the position in Singapore. In the United States, see In re Tri-Continental Exchange Ltd 349 BR 627 (Bankr ED Cal, 2006).
[17] Discussing these different approaches, see Re Zetta Jet Pte Ltd and others [2019] 4 SLR 1343 (HC).
[18] MLCBI, Art 6.
[19] Companies’ Creditors Arrangement Act, s 61(2).
[20] Law 20720 of 2014 (Insolvency Act), Art. 305.
[21] Law on Recognition and Assistance for a Foreign Insolvency Proceeding, Art. 21.
[22] Debtor Rehabilitation and Bankruptcy Act, Art. 632.3.
[23] IRDA, Third Schedule, Art 6.
[24] Re Zetta Jet Pte Ltd and others [2018] 4 SLR 801 (HC).
[25] Re PT Garuda Indonesia (Persero) Tbk [2024] SGHC(I) 1.
[26] These situations include: (a) where recognition is sought in respect of a foreign proceeding commenced in breach of a moratorium over legal proceedings; (b) where the relief sought under the Model Law is prohibited in the forum state or where compliance with orders for such reliefs would open individuals to criminal prosecution; (c) where the foreign representatives acted in bad faith or failed to make full and frank disclosure of material facts to the receiving court; (d) where recognition is sought of a foreign proceeding commenced in breach of the recognising court’s order granted in a prior proceeding; and (e) where there is a failure to accord due process to the creditors and other relevant stakeholders in the foreign insolvency process. See Re PT Garuda Indonesia (Persero) Tbk [2024] SGHC(I) 1 at [96].
[27] Re PT Garuda Indonesia (Persero) Tbk [2024] SGHC(I) 1 at [88]–[94].
[28] MLCBI, Art 2(f).
[29] IRDA, Third Schedule, Art 2(d).
[30] United States Bankruptcy Code, 11 USC §1502(2).
[31] MLCBI, Art 20(1).
[32] See W.Y. Wan and G. McCormack, ‘Implementing Strategies for the Model Law on Cross-Border Insolvency: The Divergence in Asia-Pacific and Lessons for UNCITRAL’ (2020) 36 Emory Bankruptcy Developments Journal 59 at 83–84. See also O. Soogeun and C. Jingshan, ‘A Comparative Analysis on Cross-border Insolvency Legislation of Japan, Korea, China and UNCITRAL Model Law’ (2023) 13(2) KLRI Journal of Law and Legislation 253 at 274–276.
[33] MLCBI, Art 21(1)(g).
[34] Ibid.
[35] See United States Bankruptcy Code, 11 USC §1521(a)(7) and IRDA, Third Schedule, Art 21(1)(g).
[36] For the position in the United States, see In re Sino–Forest Corporation 501 BR 655 (Bankr SDNY, 2013); In re Lupatech SA 611 BR 496 (Bankr SDNY, 2020); In re Oi SA 587 BR 253 (Bankr SDNY, 2018). In Singapore, see Re Tantleff, Alan [2023] 3 SLR 250 (HC). More recently, however, see Re PT Garuda Indonesia (Persero) Tbk [2024] SGHC(I) 1, suggesting that the recognition and enforcement of a foreign insolvency judgment or order was more appropriately granted under the equivalent of Art 21(1) of the MLCBI as part of ‘any appropriate relief’, as opposed to the equivalent of Art 21(1)(g) of the MLCBI.
[37] Rubin v Eurofinance SA [2012] 3 WLR 1019.
[38] S. Atkins and J. Martin, ‘The Model Law on Cross-Border Insolvency turns 25: A time for celebration and recalibration in pursuit of a global approach to recognition and judicial cooperation’ Singapore Global Restructuring Initiative Blog <http://ccla.smu.edu.sg/sgri/ blog/2022/06/02/model-law-cross-border-insolvency-turns-25>, 2 June 2022.
[39] See A. Walters, ‘Modified Universalisms and the Role of Local Legal Culture in the Making of Cross-Border Insolvency Law’ (2019) 93 American Bankruptcy Law Journal 47.
[40] See Re OJSC International Bank of Azerbaijan [2018] EWHC 59 (Ch); Chang Chin Fen v Cosco Shipping (Qidong) Offshore Ltd [2021] CSOH 94. For the analysis of the rule in Gibbs in other jurisdictions that have not adopted the MLCBI such as Hong Kong, see Re Rare Earth Magnesium Technology Group Holdings Limited [2022] HKCFI 1686.
[41] See Antony Gibbs & Sons v La Société Industrielle et Commerciale des Métaux (1890) 25 QBD 399. For more recent interpretations of the rule in Gibbs, see, e.g., Bakhshiyeva v Sberbank of Russia [2018] EWCA Civ 2802 (UK); Re Rare Earth Magnesium Technology Limited [2022] HKFCI 1686 (HK).
[42] Ibid.
[43] Criticising the rule in Gibbs, see, e.g., Kannan Ramesh, ‘The Gibbs Principle: A Tether on the Feet of Good Forum Shopping’ (2017) 29 Singapore Academy of Law Journal 42. See also Re Pacific Andes Resources Development Ltd [2016] SGHC 210 at [48] (Singapore); In re Agrokor DD 591 BR 163 (2018) at 192, 196 (US).
[44] Emphasising the benefits of the MLCBI, see S. Atkins and J. Martin, ‘The Model Law on Cross-Border Insolvency turns 25: A time for celebration and recalibration in pursuit of a global approach to recognition and judicial cooperation’ Singapore Global Restructuring Initiative Blog <http://ccla.smu.edu.sg/sgri/blog/2022/06/02/model-law-cross-border-insolvency-turns-25>, 2 June 2022.
[45] See A. Casey, A. Gurrea-Martinez and R. Rasmussen, ‘Towards a New Approach for the Choice of Insolvency Forum’ <http://ccla.smu.edu.sg/ sgri/blog/2023/09/15/towards-new-approach-choice-insolvency-forum>, 15 September 2023.
[46] For an analysis of the detrimental effects of COMI in the specific context of emerging economies, see A. Gurrea-Martinez, Reinventing Insolvency law in Emerging Economies (CUP, Cambridge, 2024) Chapter 8.
[47] For a detailed analysis of this proposal, see A. Casey, A. Gurrea-Martinez, R. Rasmussen, ‘A Commitment Rule for Insolvency Forum’ European Corporate Governance Institute – Law Working Paper No. 754/2024 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4704029>, 31 January 2024.
[48] See UNCITRAL, ‘Applicable law in insolvency proceedings’, <http://documents-dds-ny.un.org/doc/UNDOC/GEN/V23/067/28/PDF/ V2306728.pdf?OpenElement>, 11–15 December 2023.
[49] A. Casey, A. Gurrea-Martinez, R. Rasmussen, ‘A Commitment Rule for Insolvency Forum’ European Corporate Governance Institute – Law Working Paper No. 754/2024 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4704029>, 31 January 2024.
[50] The principles of court-to-court communications are the ‘Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters’ and the mechanics are known as ‘Modalities of Court-to-Court Communication’. These materials can be found at <https:// www.jin-global.org/jin-guidelines.html> and <https://www.jin-global.org/modalities.html> respectively.
[51] Examples of these bilateral agreements have been reached between Mainland China and Hong Kong, and between Singapore and Malaysia. Similarly, cross-border protocols have also become popular in various countries. For a database of cross-border insolvency protocols, see International Insolvency Institute, ‘III: Insolvency Protocols’ <https://www.iiiglobal.org/initiatives/iii-insolvency-protocols/>, 29 January 2024. In the literature, see Ilya Kokorin and Bob Wessels, Cross-Border Protocols in Insolvencies of Multinational Enterprise Groups (Edward Elgar, 2021). For an overview of the bilateral agreement between Mainland China and Hong Kong and the cases which have implicated it thus far, see Kate Stephenson, ‘Cross-Border Recognition of Restructuring Proceedings: State of the Market’ (2023) INSOL International Technical Paper Series No. 61 at para. 3.2.5.