In brief
Australian courts continue to show their willingness to support foreign insolvency appointees’ efforts to investigate claims in Australia. Recent decisions,1 and ongoing cases, emphasise the role the Model Law in Australia can play in facilitating public examinations into claims relevant to a foreign insolvency appointment.
Key takeaways
Recognition of a foreign insolvency appointment under the UNCITRAL Model Law on Cross Border Insolvency (“Model Law“), when the usual criteria for recognition are otherwise met, will only be refused when doing so would be manifestly contrary to Australian public policy. Simply identifying a potentially contrary reason as “policy”, is not sufficient. The threshold for refusal is high.
The Federal Court of Australia has indicated it will take the same approach as the Singaporean International Commercial Court in the case of Re PT Garuda Indonesia (Persero) Tbk2 (where Baker McKenzie represented Garuda). In Singapore, “manifestly” has been omitted from the phrase “manifestly contrary to public policy” when setting the boundaries for recognition to be refused. Australia adopts the full phrase, and as this case shows, also interprets the exception highly restrictively.
In depth
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