Cross‑Border Insolvency Act 2008
No. 24, 2008
Compilation No. 7
Compilation date: 18 December 2020
Includes amendments up to: Act No. 154, 2020
Registered: 25 January 2021
About this compilation
This compilation
This is a compilation of the Cross-Border Insolvency Act 2008 that shows the text of the law as amended and in force on 18 December 2020 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Crown to be bound
Part 2—Model Law on Cross‑Border Insolvency
5 Definitions
6 Model Law to have force of law in Australia
7 References in Model Law to this State
8 Identifying Australian laws relating to insolvency
9 Entities that are not covered by the Model Law
10 Courts competent to perform functions under Model Law
11 Functions of the trustee (in bankruptcy proceedings) and the registered liquidator (in corporate insolvencies)
12 Access of foreign creditors to Australian insolvency proceedings
13 Application for recognition of foreign proceeding
14 Subsequent information
15 Relief that may be granted upon application for recognition of a foreign proceeding
16 Effects of recognition of a foreign main proceeding
17 Actions to avoid acts detrimental to creditors
18 Forms of cooperation
19 References to laws/law of this State and courts of this State
20 Application
Part 3—Interaction with other Acts
21 Interaction with the Bankruptcy Act 1966
22 Interaction with the Corporations Act 2001
Part 4—Regulations
23 Regulations
Schedule 1—Model Law on Cross‑Border Insolvency of the United Nations Commission on International Trade Law
Endnotes
Endnote 1—About the endnotes
Endnote…
Overview
The Cross-Border Insolvency Act 2008 was enacted to provide a legislative framework in Australia for the recognition and cooperation in cross-border insolvency proceedings, in line with the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law. This Act was passed by the Australian Parliament and received Royal Assent on 26 May 2008. The primary objective of this legislation is to facilitate the effective handling of cross-border insolvency cases, ensuring cooperation between courts and other competent authorities in Australia and foreign states, providing legal certainty for trade and investment, and protecting the interests of all creditors and other interested parties. The Act binds the Crown in all its capacities and applies to insolvency proceedings under the Bankruptcy Act 1966 and the Corporations Act 2001. The Act was designed to incorporate the Model Law into Australian law, with certain modifications to align with Australian legal frameworks and practices, and to address specific Australian insolvency laws and processes.
Scope and Application
The Cross-Border Insolvency Act 2008 is designed to give effect to the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law in Australia, and to provide for related purposes. The Act applies to proceedings under the Bankruptcy Act 1966 or the Corporations Act 2001, whether commenced before, on or after the commencement of the Act. Additionally, the Act applies to foreign proceedings commenced on or after the commencement of the Act. The Act binds the Crown in each of its capacities and has the force of law in Australia, subject to certain modifications. The Act identifies the Bankruptcy Act 1966 and the Corporations Act 2001 as Australian laws relating to insolvency. Entities prescribed by the regulations are designated for the purposes of the Model Law and are not covered by the Act. The Federal Court of Australia and the Supreme Court of a State or Territory are specified as courts competent to perform functions under the Model Law. The Act allows for the making of regulations to prescribe matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Key Provisions
- The Cross-Border Insolvency Act 2008 (Cth) gives effect to the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law. This Act applies to proceedings under the Bankruptcy Act 1966 (Cth) and the Corporations Act 2001 (Cth) that commenced on or after 1 July 2008. The Act also applies to foreign proceedings that commenced on or after the commencement of the Act. The Model Law, with certain modifications, has the force of law in Australia, and it aims to provide effective mechanisms for dealing with cases of cross-border insolvency.
- The Act imposes several obligations on parties involved in cross-border insolvency proceedings. For instance, a foreign representative must provide specific information when applying for recognition of a foreign proceeding (s 13). Additionally, the foreign representative must promptly inform the court of any other foreign proceedings that become known to them (s 14). The court may grant relief upon application for recognition of a foreign proceeding, including staying execution against the debtor’s assets or entrusting the administration or realization of the debtor’s assets to the foreign representative (s 19). Furthermore, the court must ensure that the interests of creditors and other interested persons are adequately protected when granting or denying relief (s 22).
- Breach of the provisions of the Act may lead to civil or criminal consequences. For example, failure to provide the required information when applying for recognition of a foreign proceeding may result in the court refusing to grant relief. Additionally, failure to adequately protect the interests of creditors and other interested persons may lead to the modification or termination of relief granted by the court. It is important to note that the Act does not specify maximum penalties for breaches; however, penalties may be imposed under other relevant laws, such as the Bankruptcy Act 1966 (Cth) or the Corporations Act 2001 (Cth).
- Area of Law
- International Trade Law
- Commercial Law
- Insolvency Law
- Instrument
- Act
- Concepts
- Definitions & Interpretation
- Repeal & Amendment
- Licensing & Registration
- Enforcement Powers
- Regulatory Standards
- Extraterritorial Application
