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The recent decisions (one from England and two from Quebec) in the Stanford International Bank (“SIB”) matter cast doubt on the ability of international courts to develop a unified and cohesive approach to the interpretation of Article 15 of the UNCITRAL Model Law on Cross-Border Insolvency (the “Model Law”). In the English decision in Re. Stanford International Bank Limited, et al.  EWHC 1441 (Ch.) the court found that the Antiguan appointed liquidators of SIB were the proper foreign representatives to be given recognition and not the U.S. appointed Receiver over SIB (and others). In addition, it found that SIB’s centre of main interest (“COMI”) was Antigua. The two decisions of the Quebec court (Re. Stanford International Bank Limited, et al. (2009 QCCS 4109) and (2009 QCCS 4106)) reached the opposite conclusions, largely on the basis of the court’s view of the Liquidators’ conduct. Despite the fact that the Quebec decisions were based on a version of the Canadian Bankruptcy and Insolvency Act that did not yet enshrine the Model Law, having regard to the nature of a Liquidators’ office and principles of international law, it is unclear from the Quebec decisions whether the Liquidators’ impugned conduct justified disregarding the type of interpretive analysis laid out in the English decision.
These conflicting decisions strike a stark discord with the general principle as stated in Article 8 of the Model Law in the following terms:
“In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.”
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The Stanford Bank Decisions in England and Quebec: Are we moving further away from common principles?