The Inherent Power of Common Law Courts to Provide Assistance in Cross-Border Insolvencies: From Comity to Complexity

Abstract

The weighty and difficult issues associated with cross-border insolvency have generated considerable debate over the last two decades. Legislative reform has typically proven slow and fragmented. This paper analyses the inherent power of common law courts to grant assistance in cross-border insolvency proceedings and the basis on which the inherent power is exercised. In doing so, it seeks to explore how the inherent power may continue to be of utility to common law courts. In particular, it considers the position in Singapore and Hong Kong, where the issues are especially relevant given that neither jurisdiction has yet adopted the UNCITRAL Model Law or enacted a substantial statutory regime for recognising and cooperating with foreign courts or representatives in insolvency proceedings. The paper considers the benefits and disadvantages of continuing to recognise – and extend – the inherent power. It suggests that although there are fundamental differences concerning the exercise of the inherent power, it may be possible to agree on a number of principles that inform the application of the inherent power and its future development.

Keywords: cross border insolvency; UNCITRAL Model Law on cross border insolvency; inherent power of courts