Vol 15 (2018) - Issue 1

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Judicial Cooperation in the Post-Singularis World

Introduction
The extent to which judges are able to cooperate in the absence of specific enabling legislation or an international convention or treaty, relying solely on their inherent jurisdiction and powers crafted at common-law, has often been an issue for the judiciary. This is because courts are always mindful of their delicate relationship with legislatures and the niceties of constitutional conventions that often carefully circumscribe the role of judges in crafting legal rules. That said, courts have not shied away from giving assistance in cross-border insolvency cases with examples noted from as early as the mid- to late-18th century. The lines of jurisprudence inaugurated by such cases have, over the years, featured cooperation as diverse as recognising overseas proceedings and the appointments of office-holders, granting title to office-holders over property, giving them powers to act within the jurisdiction, ordering examinations and the production of documents to aid discovery, issuing injunctions and stays to prevent piecemeal dismemberment of the debtor’s estate, opening ancillary proceedings in aid of procedures elsewhere and also approving reconstructions and creditors’ schemes.

In many jurisdictions, nevertheless, the common-law has ceded authority to specific cross-border assistance frameworks and to international texts, though it continues to be instrumental in crafting remedies under such frameworks and often must need be invoked to interpret the scope and extent of legislative provisions. However, despite constant exhortations from international bodies in favour of the adoption of such texts, particularly the UNCITRAL Model Law on CrossBorder Insolvency Proceedings 1997, it is not the case that all jurisdictions have such measures available, often because local legislatures do not see it as a priority for enactment. Even where there are local rules for assistance, their design may not have fully anticipated the development of the types of assistance that would be useful in international cases. In such instances, the pronouncements of the court continue to be the major or only source of rules on cooperation. In that light, the guidance of the highest courts as to the permissible extent of cooperation is often relied upon for authority by the lower courts for the continued development of common-law assistance.