1Short title
This Act may be cited as the Cross‑Border Insolvency Act 2008.
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Bill homepage (APH)This Act may be cited as the Cross‑Border Insolvency Act 2008.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 26 May 2008 |
2. Parts 2, 3 and 4 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 1 July 2008 (see F2008L02165) |
3. Schedule 1 | At the same time as the provision(s) covered by table item 2. | 1 July 2008 |
This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
This Act binds the Crown in each of its capacities.
In this Act:
external Territory: see subsection 19(6).
Model Law means the Model Law on Cross‑Border Insolvency of the United Nations Commission on International Trade Law, set out in the Annex to United Nations General Assembly Resolution A/RES/52/158 (1997), the English text of which is set out in Schedule 1 to this Act.
In 2008, the text of United Nations General Assembly Resolutions was accessible through the United Nations website (www.un.org).
An expression that is used in both this Act and the Model Law (whether or not a particular meaning is given to it by the Model Law) has, in this Act, the same meaning as in the Model Law.
Subject to this Act, the Model Law, with the modifications set out in this Part, has the force of law in Australia.
In the Model Law (as it has the force of law in Australia), a reference to this State is a reference to Australia.
See also section 19 for references to laws/law of this State and court of this State.
The Model Law has the force of law in Australia as if the Model Law referred to:
the Bankruptcy Act 1966; and
Chapter 5 (other than Parts 5.2 and 5.4A) of the Corporations Act 2001, section 601CL of that Act and Schedule 2 to that Act;
wherever the Model Law provides that the laws of the enacting State relating to insolvency are to be identified.
Entities prescribed by the regulations are designated for the purposes of paragraph 2 of Article 1 of the Model Law (as it has the force of law in Australia).
The effect of prescribing an entity is that the Model Law does not apply to it.
The regulations may prescribe the entity by reference to a class. See subsection 13(3) of the Legislation Act 2003.
The following courts are taken to be specified in Article 4 of the Model Law (as it has the force of law in Australia) as courts competent to perform the functions referred to in the Model Law relating to recognition of foreign proceedings and cooperation with foreign courts:
if the functions relate to a proceeding involving a debtor who is an individual—the Federal Court of Australia;
if the functions relate to a proceeding involving a debtor other than an individual:
the Federal Court of Australia; and
the Supreme Court of a State or Territory.
References in the Model Law to a court or the court are, because of this section, to be read as references to the Federal Court of Australia or the Supreme Court of a State or Territory.
The Model Law has the force of law in Australia as if the Model Law referred to whichever of the following is appropriate:
the trustee (within the meaning of subsection 5(1) of the Bankruptcy Act 1966);
a registered liquidator (within the meaning of section 9 of the Corporations Act 2001);
wherever the Model Law indicates that the title of the person or body administering a reorganization or liquidation under the law of the enacting State is to be inserted.
For the purposes of Article 13 of the Model Law (as it has the force of law in Australia), the alternative wording set out in footnote 2 to the Model Law replaces paragraph 2 of that Article.
For the purposes of the replacement paragraph, the claims of foreign creditors, other than those concerning tax and social security obligations, must not be ranked lower than the unsecured claims of other creditors solely because the creditor concerned is a foreign creditor.
In addition to the requirement in paragraph 3 of Article 15 of the Model Law (as it has the force of law in Australia) that an application for recognition be accompanied by a statement identifying all foreign proceedings in respect of the debtor that are known to the foreign representative, the application must be accompanied by a statement identifying:
all proceedings under the Bankruptcy Act 1966 in respect of the debtor; and
any appointment of a receiver (within the meaning of section 416 of the Corporations Act 2001), or a controller or a managing controller (both within the meaning of section 9 of that Act), in relation to the property of the debtor; and
all proceedings under Chapter 5 of the Corporations Act 2001, section 601CL of that Act or Schedule 2 to that Act, in respect of the debtor;
that are known to the foreign representative.
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