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UNCITRAL

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UNCITRAL Working Group V

The Ian Fletcher Moot is proud to be supported by UNCITRAL Working Group V (WGV). Each year UNCITRAL offers a prize for our Best Mooter in the finals to attend a session of WGV, either in Vienna or New York. 

What is UNCITRAL Working Group V?

The United Nations Commission on International Trade Law is the core legal body of the United Nations system in the field of international trade law. A legal body with universal membership specializing in commercial law reform worldwide for over 50 years, UNCITRAL's business is the modernization and harmonization of rules on international business.

Working Group V specialises in Insolvency Law. The 64th session, held in May 2024 in New York, was attended by the winner of the 2023 Best Mooter Award, Nikhita Nair, University College London, UK.

Report from Nikhita Nair on WG V May 2024

One year ago, I participated in the Ian Fletcher International Insolvency Moot 2023 and was awarded the Best Speaker of the Final Round. Consequently, INSOL kindly arranged for me to observe UNCITRAL’s 64th Working Group V (WG V) session. From 13 to 17 May 2024, I had the incredible experience of flying to New York to attend the 64th WG V Session at the United Nations Headquarters.

 

Scanning my conference pass and walking into a room full of international delegates was a surreal experience. Each table had earpieces connected to real-time translations of the discussion. It struck me then that being in an international arena posed a distinct challenge; delegations must work with both different languages and a diverse set of legal systems.

In the session, WG V discussed a ‘toolkit’ and accompanying explanation to guide States in civil asset tracing and recovery in insolvency proceedings, and a draft legislation with commentary on applicable law in insolvency proceedings. I was impressed by how the Working Group scrutinized the Working Papers line-by-line, looking at the implication of each word. For example, in the discussion of ex parte measures in civil asset tracing, the definition of ex parte measures, i.e. whether it required notice be given, varied by jurisdiction.

 

The applicable law project highlighted the challenges WG V faces in harmonizing insolvency law where public policy imperatives come into play. For instance, where protections for secured creditors applying the lex fori concursus (the law of the State in which proceedings have been opened) differed from the law of the jurisdiction being asked to apply it, delegations noted that safeguards were needed to prevent secured creditors from being deprived of protections in the insolvency element. Complexities also arise where arbitration and financial systems are involved; these are areas WG V will continue to address in future sessions on the applicable law topic.

 

One observation I made was that WG V was collaborative. The United Kingdom’s representative, who was retiring from WG V, said in his farewell that WG V had always been a collegiate body. As WG V operates by consensus, I witnessed how delegations were willing to focus on areas of agreement to make tangible progress in each project.

 

I am deeply grateful to Samira Musayeva, Secretariat of WG V and Benjamin Herisset, Legal Officer in the Secretariat, for their guidance throughout the conference. I am also extremely grateful for the care that INSOL showed me. INSOL and UNCITRAL facilitated my attending various social events: dinner with the Chairman of the WG V Session, Harold Foo, who shared his insights on insolvency law in Singapore and lunch with Clare Wee, INSOL’s Regional Head for Asia (who was acting as INSOL’s representative for WG V) and the Singapore delegation were highlights of the week. I also attended a panel and drinks session organised by IWIRC, III and UNCITRAL at One Vanderbilt – happily ticking off my goal of seeing the Manhattan skyline. A moment that stood out to me was Ontario Chief Justice Geoffrey Morawetz sharing about the creation of the MLCBI, particularly in response to cross-border insolvencies where there were no secured creditors to lead the charge. Having spent months mooting on the MLCBI, hearing about its inception was inspiring and deeply educational.

 

Aside from the conference, I explored the both tourist-areas and back-offices of the UN. Additionally, I had the chance to have lunch with interns from the UN Office of Legal Affairs, leaving with new friends and a deeper understanding of the UN. Thankfully, I extended my trip and had the chance to explore New York and meet old friends as well!

 

I entered the Fletcher Moot knowing nothing about international insolvency law. I came out of the WG V session hoping to continue learning about this field of law. To echo my predecessor who attended the last WG V Session, “I recommend any student thinking about participating to dive straight in! Before I did the moot I had never encountered insolvency law. Now I am hoping to practice in it.”

Report from William Liu on WG V December 2023

After being awarded best oralist in the 2022 Fletcher Moot, INSOL International generously granted me a stipend to observe the UNCITRAL Working Group V on Insolvency in Vienna, from 11–15 December 2023. INSOL sponsored my flights and accommodation, and arranged for me to have access to the Vienna International Centre. It was incredible being inside the UN building, seeing the famous flags, the snow, and the exhibits. I’m grateful to Samira Musayeva, the Secretary of Working Group V, for hosting me; and to Anne Mostad-Jensen, the UNCITRAL Legal Librarian, for being my guide throughout the five days.

Once I stepped into the conference room, I saw hundreds of representatives from States and organisations all around the world. Everyone was deeply experienced in insolvency law, both from a legal and a policy perspective. There were two key items of discussion. The first was a ‘toolbox’ to guide States in their efforts to trace and recover assets disposed of by insolvent debtors. The second was draft legislation, with commentary, on applicable law in insolvency proceedings. I was impressed by how closely the Working Group scrutinised both texts, paragraph by paragraph, often descending into the implications of a specific word.

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William Liu with the team from Monash University 2022.

I learned a lot about substantive insolvency law. For instance, I learned about the various ways in which different jurisdictions provide for asset recovery: from avoidance (as distinct from actio pauliana), to a familiar device in my own common law jurisdiction, the constructive trust. Other topics of interest included cooperation between judiciaries, registers of assets and security interests, and interim orders to preserve assets.


I also learned a lot about the policy imperatives motivating insolvency law. It became clear to me that a coherent and predictable insolvency law made lending safer, and thereby had the potential to lead to a more efficient and productive economy. This was particularly pronounced during the choice of law discussions.


A third thing I learned about was the cooperation needed in a cross-border context. States and observers were respectful, and always listened closely to what others had to say before responding in a considered manner. It was also impressive how they transcended linguistic borders. On the final day, a delegate suggested that the French version of a text would result in an inconsistent outcome as compared to, say, the English version. He was invited to re-draft the relevant passage, and shortly after, his draft was incorporated. To have people working in six languages at once, and for them all to understand each other, thanks to real-time interpretation, was extraordinary.


I was also grateful to the care shown to me by INSOL. I had thought that I would be wandering the streets of Vienna at night by myself (which would have been nothing to complain about!), but instead I was invited by INSOL’s President (who was also Australia’s representative in the Working Group), Scott Atkins, to various social events: from drinks evenings where I had the chance to meet States’ representatives, to more intimate dinners where I got to speak to INSOL practitioners from all around the world. Thankfully I did get to explore the Christmas Markets and have a mug of Glühwein in the end! With a few palaces and museums in between.


Participating in the Fletcher Moot, and visiting the Working Group in Vienna, have been incredible experiences I won’t forget. I express my deep gratitude to INSOL International, UNCITRAL, and the Fletcher Moot, and its sponsors and supporters, for making this all possible. And I recommend any student thinking about participating to dive straight in! Before I did the moot I had never encountered insolvency law. Now I am hoping to practice in it.

Foundation Sponsors

It is with great appreciation that we acknowledge the foundation sponsors for the Ian Fletcher International Insolvency Law Moot.

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