Do words matter?: a comparative analysis of the UNCITRAL model law on cross-border insolvency in Australia, Canada, New Zealand, United Kingdom and the United States of America

The UNCITRAL Model Law on Cross-Border Insolvency was designed to be enacted as a domestic law in the States in which it was enacted. There has been no consistency in the way Australia, Canada, New Zealand, the UK and the USA have incorporated the Model Law into their domestic law. This thesis looks at four central questions in relation to the Model Law by comparing the situation in each of the five States examined:

1. Does the inconsistent wording adopted in the enactment of the Model Law affect it is interpretation?

2. Would an insolvent debtor with assets in each of the States examined or their foreign representative be treated consistently between those jurisdictions?

3. Do the inconsistencies prevent the principles of modified universalism from being achieved?

4. Has the Model Law achieved its stated objectives as set out in its preamble?

This thesis establishes that (a) the inconsistent wording adopted in the enactment of the Model Law has created inconsistency in its interpretation; (b) an insolvent debtor with assets in each of the States examined or a foreign representative may be treated inconsistently between those States due in part to the inconsistencies in the enactment of the Model Law between those jurisdictions; (c) the Model Law in each of the jurisdictions is generally consistent with the principles of modified universalism; and (d) the Model Law does not at present fully achieve its all of its objectives as set out in its preamble.

This thesis proposes a convention as a possible solution to the identified problems. A draft is provided in Appendix 4.