Contemporary Issues in Finance and Insolvency Law Volume 2

Leon Trakman is UNSW Emeritus Professor and Former Dean of Law at the University New South Wales in Sydney, Australia. He has held professorial appointments in the United States, at Wisconsin, University of California (Davis) and Tulane; in Canada at McGill and Dalhousie; and in Australia at UNSW. He is author of ten books and over 150 journal articles including on topics that are addressed in this book. A barrister and international commercial arbitrator, he serves on international commercial arbitration panels of global arbitration centres. A panellist under the NAFTA, he was regularly appointed by the US, Canadian and Mexican Governments to resolve trade and investment disputes. He currently serves on the Remedies Panel of the United States Mexico Canada Agreement (USMCA). He holds both Master and Doctorate degrees from Harvard University.Robert Walters, Lecturer, Victoria University, Melbourne, Australia. Dr. Walters is also Adjunct Professor of Law, European Faculty of Law, New University, Slovenia, Europe, and admitted to practice law in Australia. Robert is a qualified International Arbitrator. He is a member of ASEAN Law Association – Singapore, Asia Pacific Scholar (Privacy/Data Protection) Network. His work on cross-border data flows in the new digital economy has been recognised globally, and in 2021 he was engaged by the British Government to undertake a project on determining data adequacy across commonwealth countries. Dr. Walters specialises in transnational commercial and private law (data protection, cyber security, artificial intelligence, trade, finance and investment including cross-border insolvency, contracts and arbitration).

• 7. International Arbitration. 8.Cross-Border Insolvency and Data Protection Law. 9. Artificial Intelligence and Insolvency. 10. Internationalisation of Commercial Law and Pathway Forward. Appendix One – ISDA Master Agreements.

“Cross-border insolvency necessarily involves multiple jurisdictions. But, as this important new work demonstrates, it also routinely necessitates multiple perspectives – economic and legal, of course, but also social, political, and medical. A particular strength is the manner in which the book focuses on the digital economy, where data is a source of value but doesn’t fall neatly into existing categories: Is it a good? Is it a service? Is it something else? At the same time, the authors ground their research in the practical and the pragmatic, offering concrete proposals in support of regulatory convergence and harmonisation that, they argue, will better enable the global economy to navigate increasingly choppy waters. For practitioners, scholars, and students it will be of great interest –and of great use.”Simon Chesterman, Dean and Provost’ Chair Professor of the National University of Singapore Faculty of Law and Senior Director of AI Governance at AI Singapore“In this innovative new book, Trakman and Walters make the case for urgent reform of cross border corporate insolvency and restructuring law. Their account covers, but goes beyond, challenges with the existing enforcement and recognition regime, to call for ‘internationalisation’ of various legal tools and mechanisms, including several rarely discussed in a cross-border insolvency and restructuring context such as letters of comfort, data protection, and artificial intelligence. This impressive scope is matched by engagement with an impressive number of jurisdictions: Australia; India; Indonesia; China; Singapore; UK; US; and the European Union. The result is a book which deserves a place on the bookshelves of anyone interested in this important field.”Sarah Paterson, Professor of Law, London School of Economics“As the world continues to grapple with the COVID-19 pandemic and economic downturn, this is a most timely and impressive study of cross-border insolvency. A particular strength is its extensive research. The authors cover not only technical substantive laws concerned with transnational insolvency, but also complicated private international law issues such as jurisdiction and international commercial arbitration, which are rarely discussed in the literature. It further identifies key emerging areas of international commercial law such as data protection and artificial intelligence that will form part of cross-border insolvency and restructuring. Specifically the book calls for nations to collaborate at the internationalisation level for current and future economic shock. One of the finest works on cross-border insolvency, this book is essential reading for everyone interested in the insolvency law, international commercial law, private international law and international dispute resolution.”Weixia Gu, Associate Professor, The University of Hong Kong Faculty of Law and Co-Chair, American Society of International Law Asia-Pacific Interest Group (2018–2021)“Throughout the COVID-19 pandemic the world has experienced various levels of financial stress. However, in this context of a global crisis some crucial aspects of financial infrastructural stress, such as cross border insolvency and restructuring, have not often been spoken or written about. Against the backdrop of a period of growth, internationally, nevertheless a comparatively large number of entities have had to restructure or declare insolvency. With many entities based in multiple locations and in different countries, this book provides partitioners, scholars, and students with a highly sophisticated comparative legal analysis. The authors make an important point – that national and international regulators need to take a preventative approach, to ensure or minimise as far as possible future economic shocks, and ensure a high level of certainty. As the digital economy expands, the authors also highlight the importance of data and artificial intelligence technology to future cross border restructuring and insolvency. In calling for greater internationalisation of these area of law and of close out netting provisions, the authors embrace the roles of international organisations such as UNCITRAL-UNICTAD which can have a positive effect. I highly recommend this book to anyone with an interest in cross border insolvency or restructuring.”Michael Stuckey, Professor and Dean of School of Law, University of Tasmania, Australia“Insolvency law and its practice sits within a country’s legal system. The book explains how insolvency law and its various mechanisms – preventive and reconstructive, often ‘multi-layered’ – are applied to businesses under financial stress. The book’s particular merit is its coverage of a broader range of insolvency laws and their intersections than we generally see, beyond the UNCITRAL Model Law and schemes of arrangement to close out and netting arrangements, keepwell agreements, arbitrations, data control and artificial intelligence. In comparing and contrasting different national approaches, this text makes a valuable and timely contribution to international insolvency law.”Michael Murray, Principal at Murrays Legal, Sydney, Australia and Director, Australian Academy of Law