Justice Kannan Ramesh: Keynote Address at the Restructuring and Insolvency Academic Forum 2025

1.      A very good morning to everyone. It is my pleasure to be here.

2.      About 9 years ago, at the International Association of Insolvency Regulators 2016 Annual Conference and General Meeting in Singapore, I had observed that there was a new paradigm of increased economic convergence across the globe.⁽¹⁾ The zeitgeist of the time was one of exponential post-war trade liberalisation, beginning with the 1947 General Agreement on Tariffs and Trade which facilitated the reduction of trade barriers and laid the building blocks for its immediate successor, the World Trade Organization (the “WTO”), and the subsequent proliferation of bilateral and multilateral investment treaties and regional trade agreements.⁽²⁾ Consequently, businesses have transcended national boundaries and weaved intricate webs of cross-border enterprise.⁽³⁾ Animated by the same spirit of increased economic integration and cohesion, the UNCITRAL Model Law on Cross-Border Insolvency (the “Model Law”) was promulgated in 1997, with multilateralism as its bedrock.

3.    The paramount question at that time was whether our insolvency laws had sufficiently evolved to deal with the new paradigm of economic convergence and increasingly complex cross-border insolvencies.⁽⁴⁾

4.    Bookended by the two extremes of “territorialism” and “universalism”, a third concept started to take root in response to the new reality. This of course was “modified universalism”. Modified universalism proved attractive because it offered a sensible, pragmatic and palatable middle ground. As summarised by Lord Hoffmann in the seminal decision of In re HIH Casualty and General Insurance [2008] 1 WLR 852, “modified universalism” prescribed that, as far as is consistent with justice and public policy, courts should cooperate with the courts in the country of an entity’s principal liquidation to ensure that the company’s assets are distributed under a single system of distribution.⁽⁵⁾ Modified universalism recognised the realities of the interconnected nature of the new global economic order while at the same time acknowledging the sovereignty and territoriality of jurisdictions. As aptly put by my colleague Justice Steven Chong, modified universalism seeks to “reach, by means of sensible judicial co operation, as unified a system of distribution as possible within the constraints of multiple concurrent proceedings and while maintaining respect for domestic public policy concerns”.⁽⁶⁾

5.   The ethos of this period was thus very much one of “modified universalism”. This was exemplified in the Model Law itself, which sought to establish a framework between jurisdictions to facilitate and promote cooperation and coherence in cross border insolvencies matters by supporting, to the extent permissible, a main proceeding, but eschewed the wholesale unification of substantive insolvency laws.⁽⁷⁾ Modified universalism has undoubtedly served us well.

6.   However, the paradigm has changed. There has been a perceptible shift in the geopolitical landscape. Protectionism and geopolitical contestation have reared their heads. Driven by geopolitical rivalries and a perception that the WTO framework has been taken advantage of to their detriment by others, some nations have embraced a more guarded approach to trade,⁽⁸⁾ imposing tariffs in an attempt to level the playing field, neutralise the perceived disadvantage, and shield their domestic industries from foreign competition. In a reactionary response, others have sought to form new trade groupings or trading blocs. Global trade and supply chains have consequently been impacted, with trade flows no longer seamless and supply chains forced to reorganise rapidly. Also, economic and investment assumptions are being hastily revisited and recalibrated. Add to this potentially volatile mix the recent geopolitical conflagrations. The slew of sanctions that has ensued has compounded the disruption.⁽⁹⁾ The pendulum appears to be swinging from economic convergence to increasing global fragmentation. The rules-based global trading order is under stress. The Director General of the WTO, Ngozi Okonjo-Iweala, observed at the recent APEC Economic Forum in Gyeongju, South Korea that the global trading system is undergoing its largest disruption in eight decades. Whether this is a passing cloud or a tectonic shift is a matter for crystal ball gazing. But it is fair to surmise that it is unlikely to be business as usual.

7.   Modified universalism, and the model instruments and laws which have it in their DNA, were a response to a world that was flat. But a world with fissures and fault lines is no longer quite so flat. The pressing question then is this: are they still fit for purpose? In this address, I offer some thoughts and solutions, without offering a panacea. My broad thesis is that modified universalism remains our best hope. It is the bedrock of the legal framework in cross-border insolvency. Procedural fairness and comity are unbroken keystones of the global economy in cross-border insolvency. We must do our utmost not to abandon this. Notwithstanding growing friction and fissures, as long as global commerce remains interconnected, the reasons why modified universalism was relevant then remain relevant today. I draw comfort from the fact that despite the tensions, there is no global movement towards decoupling. For sure, there is onshoring and reshoring, but the strident call is to reform and strengthen the WTO framework, and not to abandon it. The restrained response by many countries to the imposition of tariffs also gives cause for optimism. Rather than retaliate and mutually impoverish each other, engagement and negotiations have been preferred. Perhaps, there is realisation that a world that is economically integrated is greater than the sum total of its parts. We should therefore persevere with modified universalism. However, perseverance does not mean an unwillingness to adapt to change. To give modified universalism a fighting chance, legal systems and philosophies must evolve, in much the same way that the WTO framework must reform to meet new realities. 

8.  I unpack the subject by making three broad points. First, formulating a principled approach to forum selection. Second, designing an effective toolkit to better harmonise and coordinate cross-border insolvency proceedings. Finally, implementing interjurisdictional frameworks for communication and cooperation between courts.

A principled approach to forum selection

9.     I start with forum selection. Much ink has already been spilt on the topic. However, surprisingly, the boundaries of permissible forum selection remain underexplored. How can we differentiate between good and bad forum selection on a principled basis? That is the seminal question.

10.   Forum selection is not an uncommon phenomenon today. This is unsurprising given the rise of nodal jurisdictions. ⁽¹⁰⁾ The pith of good forum selection is the search for an appropriate nodal jurisdiction. The search is embarked upon because stakeholders see nodal jurisdictions as offering the best prospect for an optimal resolution of a corporate failure.⁽¹¹⁾ They may not see the original seat of the debtor as offering that prospect.

11. I expect that forum selection will only grow, and may even become rampant, in a world riddled with fissures and fault lines. The advent of protectionist trade policies such as tariffs and trade restrictions would inevitably heighten business uncertainty and operational risks, and increase the possibility of failure. This may result in an uptick in the number of cross-border insolvency and restructuring proceedings.⁽¹²⁾ Geopolitical tensions and trade rivalry may lead to an increasingly isolationist perspective which may erode the willingness to cooperate in cross border insolvencies. This quagmire is fertile ground for forum selection.

12. To safeguard the integrity of modified universalism, a robust test is needed to sieve good forum selection from the bad.⁽¹³⁾ The test must address at least two interrelated issues. First, the appropriate guardrails for forum selection and second, a consistent approach to the determination of the Centre of Main Interest (“COMI”) of the debtor.

The need for guardrails 

13. In his keynote address at the 18th Annual Conference of the International Insolvency Institute in 2018, the Honourable the Chief Justice Sundaresh Menon, suggested some examples of good and bad forum selection. Good forum selection comprised situations where the selection of forum was motivated by a desire, in the interests of the creditors, to use a more favourable form of proceeding or for reasons of judicial efficiency. On the other hand, bad forum selection was where the choice was motivated by the debtor’s desire to escape its debts or where the choice would result in the reduction of realisable or recoverable net assets.⁽¹⁴⁾

14. A trawl of the jurisprudence shows that courts have generally been receptive to the strategic manufacturing of connecting factors to establish jurisdiction, provided it is done to achieve a more effective outcome. This has been characterised as “good” forum shopping or forum selection.⁽¹⁵⁾ Central to the analysis is whether forum selection has been undertaken for the benefit of the creditors. Conversely, “bad” forum selection is where a debtor strategically chooses a forum without objective regard for the best possible outcome in the insolvency.⁽¹⁶⁾ This is generally met with disapprobation.⁽¹⁷⁾

15. This liberal approach to forum selection is illustrated by the English High Court decision of Codere Finance (UK) Ltd [2015] EWHC 3778 (Ch) (“Codere”). In Codere, in order to establish the UK scheme jurisdiction, a Spanish company acquired an English company for the purpose of assuming liability as a co-issuer of the Spanish company’s notes. More than 97% of the noteholders agreed to the English company’s accession as a co-obligor. The English company thereafter proposed a scheme of arrangement. Forum selection was justified on the basis that restructuring proceedings elsewhere carried the risk of descending into insolvency proceedings which would diminish the value of the debtor’s assets. Mr Justice Newey upheld the forum selection. He reasoned that as the debtor’s motivation was to achieve the best possible outcome for the creditors, the acquisition of an English company for the sole purpose of invoking the English scheme jurisdiction was not a bar to sanctioning the scheme.⁽¹⁸⁾

16. Under this liberal approach, the only touchstone was the bright line of whether forum selection was to achieve the best possible outcome for the creditors.⁽¹⁹⁾ In this regard, the courts would generally look to the extent of creditor support for the forum selection, seeing that as an indicium that the choice was in their best interests. This approach raises two interrelated questions. First, is the approach consistent with modified universalism and comity? Second, what should be the extent of support and how should that support to be measured or weighed before it could be said that the selection was appropriate? On the first question, there is an argument that the new forum was not what was originally bargained for by the creditors when they traded with the debtor. The assumption then was that the primary insolvency proceedings would be opened in the debtor’s place of incorporation or COMI. Why then shouldn’t the creditors be bound to that assumption? On the second question, while there is an argument that the view of the majority of the creditors should hold sway, is it legitimate to squeeze out the views of the dissenters? A broad-brush assessment of support seems akin to a cram down without the power to do so. Codere did not address these questions.

17. Caution is starting to set in. There are signs of recalibration in recent English cases from the pro forum selection narrative in Codere. Some discomfort with the forum selection that had taken place is perceptible in the recent English Court of Appeal decision of In re AGPS Bondco plc (No 2) [2024] 2 BCLC 593 (“Adler”). There, a group of German companies attempted to restructure its debts in Germany and failed because the restructuring plan did not obtain the requisite majority of support from one class of creditors. In a repeat of the technique used in Codere, the group then incorporated a company in the UK which was substituted as the issuer of the debt pursuant to a provision in the loan agreement. This was to invoke the Part 26A restructuring plan jurisdiction under the UK Companies Act 2006. A restructuring plan that was similar to the one that had failed in Germany was approved and the dissenting class was crammed down using the cross-class cram down mechanism under Part 26A. The restructuring plan was sanctioned at first instance, but the decision was overturned on appeal because the Court of Appeal held that the exercise of the cram down power on the dissenting creditors was unfair. However, as neither the court nor any of the parties had raised at first instance that sanction should be refused on the basis that jurisdiction was artificially and inappropriately created, that issue could not be and was not considered on appeal. 

18. This notwithstanding, Lord Justice Snowden expressed some caution. He remarked that although the technique of inserting a newly incorporated English company as a substitute obligor or co-obligor of the debt owed by a foreign company in order to engage the jurisdiction of the English court had been used in previously sanctioned schemes, this practice had “not been the subject of consideration at an appellate level”.⁽²⁰⁾ He underscored the point that the judgment was not an endorsement of that technique.⁽²¹⁾

19. The caution in Adler might in part be attributed to the fact that the English proceedings were a second bite at a restructuring which had failed in Germany. Whether forum selection in such circumstances should be countenanced is an open question. However, concluding that the caution expressed in Adler was solely because of this is to miss the woods for the trees. I suggest that a proper reading of the caution expressed in Adler leads to the following conclusion: jurisdictional connection must be carefully scrutinised where it is manufactured and first instance courts must raise the question whether jurisdiction should be exercised, even if the parties do not.  

20. A similar cautionary note was struck by Justice Hildyard in two judgments – Re Apcoa Parking Holdings GmbH and others [2015] 2 BCLC 659 (“Apcoa Parking”) and more recently in Re HSE Finance SARL [2025] EWHC 1732 (Ch) (“Home Shopping Europe”). In Apcoa Parking, Justice Hildyard considered whether an effort to establish the UK scheme jurisdiction through a mechanism in a facility agreement was legitimate. The debt there was denominated under German law and subject to the jurisdiction of the Frankfurt courts. Using the mechanism, the governing law was changed to English law with the approval of two-thirds of the creditors.⁽²²⁾  While there was no dispute as to the validity of the mechanism itself, objections were raised before Justice Hildyard that the changes were made solely to create a connection with England in a manner akin to “forum shopping”,⁽²³⁾  and that the choice of English law and the consequent English scheme jurisdiction had been forced upon the dissentient minority.⁽²⁴⁾ While Justice Hildyard ultimately accepted the forum selection as legitimate because the scheme facilitated a restructuring that was in the interests of all the creditors,⁽²⁵⁾ he nonetheless expressed the view that there should be limits on forum selection.⁽²⁶⁾

21.  He returned to this point in more strident terms in his recent decision in Home Shopping Europe. The scheme company there was incorporated under the laws of Luxembourg. The other members of the HSE Group were incorporated either in Luxembourg or Germany.⁽²⁷⁾ The governing law of the notes in question had been changed from New York law to English law so that HSE could pursue an English scheme of arrangement.⁽²⁸⁾ If the scheme was sanctioned, the notes would be released and discharged in exchange for new notes which would be governed by New York law or Luxembourg law.⁽²⁹⁾ Justice Hildyard described this switch in the governing law as raising suggestions of “helicoptering”, although he felt it was not a compelling reason to refuse sanction of the scheme.⁽³⁰⁾ However, referencing his earlier view in Apcoa Parking, he expressed concern over “the expansive approach” of the English courts to forum selection.⁽³¹⁾

22. The broad point that emerges is this. An overexpansive approach to forum selection may not be a good thing. Why? As Justice Hildyard in Home Shopping Europe aptly observed, if English courts continued to push the boundaries on the “sufficient connection” test for the UK scheme jurisdiction, a foreign court might find the approach “too expansive” and refuse recognition. Justice Hildyard underscored the importance of reassuring courts in foreign jurisdictions from whom cooperation is sought that principles of comity and the dangers of bad forum shopping are properly addressed. Indeed, the English approach to the exercise of jurisdiction is that jurisdiction will not be exercised if the English proceedings will not be recognised by the relevant courts.⁽³²⁾

23. There is more than a kernel of truth in all of this. Egregious forum selection erodes modified universalism by compromising comity. It is entirely conceivable that a court may refuse to grant recognition because it is of the view that the forum selection is inappropriate. Recognition may be denied under Article 6 of the Model Law and perhaps even under the common law, on the basis of public policy. 

24. Article 6 provides that the court is not prevented from refusing to take an action governed by the Model Law if the action is manifestly contrary to the public policy of the State.⁽³³⁾ The Guide to Enactment clarifies that the notion of public policy contemplated in the Model Law refers to the more restrictive concept of public policy in matters of international cooperation, instead of domestic public policy.⁽³⁴⁾ However, absent a definition of public policy in the Model Law, there has been divergent and occasionally conflicting applications of the public policy exception across jurisdictions.⁽³⁵⁾ The relevant question is whether abusive forum selection falls within the public policy exception in Article 6 because it is not consonant with cooperation and comity.⁽³⁶⁾   

25. It is clear that guardrails are needed for forum selection. What they should be is for case law to sieve out. Certainly, the fact pattern in Adler of a second bite of the cherry does raise concerns. Another potential factor is where an unfair juridical advantage is sought to be gained by forum selection. Does the fact that the forum selection was a result of jurisdictional connection established pursuant to a contractual provision make a difference? It may be a factor in the overall analysis as Apcoa Parking, Home Shopping Europe and Adler demonstrate. However, even here, as the remarks in those cases show, there is reason for caution. While party autonomy through a contractual choice may be relevant and perhaps even persuasive, it cannot be conclusive or even presumptively the right choice where the question is whether substantive jurisdiction over a collective process was properly engaged and jurisdiction ought to be exercised.

26. In the round and for a start, I suggest a two-stage approach.⁽³⁷⁾ In the first stage, the court should consider whether the requirements for jurisdiction are satisfied. Second, if that is the case, the court must next consider whether it is appropriate to exercise discretion to accept jurisdiction regardless of whether an objection as to jurisdiction is raised. It is at this stage that the question of forum shopping, good or bad, comes into play. If this question is not asked and satisfactorily answered, we could see the erosion of modified universalism and comity and the whittling away of the recognition and relief architecture that is needed to support legitimate primary proceedings. We will then be on a slippery slope. 

A consistent approach to COMI

27. The caution expressed by Justice Hildyard in Home Shopping Europe is also pertinent to forum selection based on a shift in the debtor’s COMI. 

28. The Model Law stipulates that a main proceeding is to be situated in the debtor’s COMI. Under Article 16, the debtor’s registered office is presumptively the debtor’s COMI, unless proof to the contrary is shown by a party challenging the presumption.⁽³⁸⁾ It is a fact sensitive inquiry which focuses on which jurisdiction has the strongest connection to the debtor as perceived by external parties.⁽³⁹⁾ However, straightforward as this may sound, it is in fact not quite so simple. This is where there is some dissonance in the jurisprudence. 

29. As the assessment of COMI is fact-centric, a debtor’s COMI is malleable and may therefore be open to manipulation and manufacture in furtherance of forum selection. To determine whether the shift is egregious, there must be, as a baseline, a consistent approach to the determination of COMI. This issue is to some extent compounded by the fact that the Model Law was formulated on the assumption that a cross-border failure involves a single entity because businesses operate as single entities.⁽⁴⁰⁾ That was in 1997. However, the assumption has weakened since and indeed is questionable today. The liberal trading order I have described has contributed to businesses organising themselves in and functioning as groups often spread over multiple jurisdictions. Where the debtor is a cog in a group enterprise, there are complications in determining its COMI. If there isn’t a consistent test for COMI, that is fertile ground for COMI manipulation. 

30. An examination of the jurisprudence suggests that such uniformity does not exist. The US courts generally adopt a “nerve centre” test for COMI. This test looks at where the debtor company performs its most important and consequential business decision making function, or in other words, the locus of the corporation’s headquarters.⁽⁴¹⁾ The “nerve centre” test cuts through the different layers of the group structure to focus on where control truly lies. The COMI of the debtor may therefore be where the group is headquartered and not where the company is incorporated or conducts its business. On the other hand, the approach in some other countries is very much debtor-centric, building on the Model Law’s assumption. The inquiry is to identify the location which third parties would objectively ascertain as the seat of the debtor’s operations. 

31. The recent Chapter 15 application of the InterCement group in In re Intercement Brasil S.A. 688 B.R. 802 (“Intercement”) illustrates the issue. The InterCement Group was a large cement producer in Brazil which comprised a Brazilian holding company and several subsidiaries in and outside Brazil. These included a Netherlands incorporated special purpose financing vehicle and a Spanish sub holding company. Among other things, the group applied for Chapter 15 recognition of its Brazilian restructuring proceedings as a foreign main proceeding. Several noteholders objected to recognition on this basis asserting that the COMIs of the Dutch and Spanish entities were not in Brazil. 

32. The US court recognised the Brazilian restructuring proceedings as a foreign main proceeding. It found that the companies’ COMIs were in Brazil as a result of the restructuring activities carried out there prior to the recognition application.⁽⁴²⁾ The US court considered that the Dutch entity’s “nerve centre” and therefore its COMI to be in Brazil and not the Netherlands. This was on the basis that the Dutch entity was a special purpose financing vehicle with no operations in the Netherlands other than managing relationships with creditors and paying off obligations on behalf of a larger corporate parent.⁽⁴³⁾ This would ordinarily have sufficed if the alternative approach to determining COMI was applied. On the other hand, the Dutch court determined that the Dutch entity’s COMI was in the Netherlands, as the presumption that the registered office was the COMI was unchallenged.⁽⁴⁴⁾ This lead to the paradoxical situation of a single company having two COMIs.⁽⁴⁵⁾

33. This paradox may be reconciled on the facts of Intercement if one appreciates that under US law, as is the case in Singapore, the assessment of COMI is as at the date of the application for recognition. A COMI shift by reason of restructuring activities is therefore permissible. But the conundrum in Intercement was not because of a difference in the date for assessing COMI. Rather it was because of a philosophical difference in the approach to determining COMI. Such a difference may impact forum selection and recognition and relief.  

34. It has been suggested by the High Court in Re Zetta Jet Pte Ltd and others (Asia Aviation Holdings Pte Ltd, intervener) [2019] 4 SLR 1343 that in ascertaining a debtor’s COMI, it may not be necessary to maintain a strict distinction between the different entities in the group. The COMI analysis could be made by considering the activities of the entire group of companies instead of just the specific debtor in question.⁽⁴⁶⁾

35. There may understandably be some unease with looking at the group as a whole to identify an individual entity’s COMI. That would be to ignore the distinct legal personality of each entity and the corporate structure of the group, and effectively consolidate the group as one. Each entity in the group has its own governance structure. The decision making is undertaken by the decision-making organs of that entity.

36. It is useful to debate whether such discomfort is justified.⁽⁴⁷⁾ COMI compels an inquiry into where the business affairs of the company and the decision making of the debtor are undertaken as perceived by external parties, principally the creditors. In a corporate group, particularly one that is highly integrated, the location of the debtor’s COMI may be displaced from the presumptive location of the registered office to the location where the group’s decisions are taken. Indeed, creditors may extend credit to one entity on the implicit understanding that they were financing the entire business of the group. There may thus be something to be said for assessing COMI on the basis of the group as a whole particularly where the group is integrated,⁽⁴⁸⁾ given that the judicial inquiry centres on practical realities rather than adhering to technical legal structures.⁽⁴⁹⁾ In fact, there is no impediment in the Guide to Enactment which stands in the way of the COMI being shared amongst several companies. As the point has not been explored by the appellate courts in Singapore, I shall say no more. The fact remains that a consistent benchmark for determining COMI is needed. In a fragmented world, the movement of the COMI within a group under the cloud of, for example tariffs and sanctions, presents challenges to courts in identifying the COMI and stamping out abusive forum selection.

Designing an effective toolkit 

37. I turn to my second point. In a fractured world, jurisdictional disputes might arise over where, how and when, intra-estate or inter-estate issues should be resolved. It is important to calm troubled waters, and courts have an instrumental role in this. To facilitate this, a good toolkit is needed. The absence of robust tools does not conduce to good outcomes.

38.  One area where there is no consensus is the applicability of the lex fori concursus to all aspects of the insolvency proceedings.⁽⁵⁰⁾ As we know, the lex fori concursus is the law of the state where the insolvency proceedings are opened. This issue has become so topical that UNCITRAL is considering an initiative on this subject. The absence of consensus may lead to parallel proceedings and increased inefficiencies, which may in turn erode the capital base for a successful restructuring or reduce the assets available for distribution in a liquidation.⁽⁵¹⁾ Such consequences need to be mitigated if not averted by developing appropriate tools. There are at least two options – the synthetic secondary proceedings (“Synthetic Proceedings”) and alternative dispute resolution (“ADR”) processes. 

39. Synthetic Proceedings facilitate the determination of the key issues in a cross border insolvency, in the primary proceeding.⁽⁵²⁾ Synthetic Proceedings achieve this by moving the resolution of an issue in a secondary proceedings to the main proceeding, upon an undertaking given to the court of the secondary proceeding that the laws of that forum would be applied to determine that issue. This avoids an interjurisdictional disagreement on which court has jurisdiction over the issue and which law should apply to its determination, while at the same time reducing the risk of inconsistent outcomes, facilitating the implementation of a cohesive plan and enabling the effective realisation of assets.⁽⁵³⁾ First employed in Collins & Aikman,⁽⁵⁴⁾ Synthetic Proceedings have since been codified in Article 28 of the UNCITRAL Model Law on Enterprise Group Insolvency (“MLG”).⁽⁵⁵⁾ However, Synthetic Proceedings have their limitations. First, Synthetic Proceedings apply only to the transfer of issues from a secondary proceeding to a primary proceeding. This of course assumes that the proceeding which seeks the transfer is legitimately the seat of the main proceeding, ie, the COMI of the debtor. If that is not the case or where there is disagreement on this, Synthetic Proceedings may not work. I have previously argued that there is no conceptual basis for not applying Synthetic Proceedings to an insolvency that is undertaken in a secondary proceeding instead of a main proceeding, ie, a synthetic main proceeding, provided the forum selection is appropriate This may solve the problem. Whether the argument will hold sway is left to be seen.⁽⁵⁶⁾ Second, the court of the secondary proceeding may insist on exercising jurisdiction and therefore reject the undertaking. Third, the lex fori concursus must permit the undertaking to be issued and the issue to be determined in accordance with the foreign law rather than the lex fori concursus.⁽⁵⁷⁾ These are the inherent limitations of what is primarily a procedural tool. This brings me to the second option – ADR.

40. I suggest that we have not sufficiently leveraged ADR to resolve issues in cross border insolvencies. I speak of mediation and arbitration. Mediation saves time and costs. For this reason, mediation is a key dispute resolution option in many jurisdictions. Mediation is also becoming a feature of international commercial dispute resolution. The Singapore Mediation Convention is in many ways a harbinger of this. 

41. In the context of insolvencies, mediation can facilitate the resolution of creditor disputes, help stakeholders reach consensus on a restructuring plan, or deconflict parallel insolvency proceedings. Notable examples of the efficacious use of mediation in a cross border insolvency are MF Global Holdings Ltd and Lehman Brothers Holdings, where court appointed mediators helped to resolve complex disputes, resulting in greater distribution to the creditors.⁽⁵⁸⁾

42.  International commercial arbitration is also widely embraced as a preferred dispute resolution process. Once thought to be at odds with the collective nature of insolvency proceedings,⁽⁵⁹⁾ there is growing acknowledgment of arbitration’s potential to resolve cross-border insolvency issues. The Singapore International Arbitration Centre Insolvency Arbitration Protocol (the “SIAC Protocol”), which was launched on 26 August 2025, is the first of its kind in this regard.⁽⁶⁰⁾ The SIAC Protocol sets out a structured approach for resolving disputes arising out of or in connection with any matter pertaining to a law relating to restructuring, adjustment of debt, or insolvency, or any insolvency proceedings.⁽⁶¹⁾ The point is this. In an insolvency, a pre-petition agreement to arbitrate may be enforced, subject to arbitrability, with the leave of the court. It is equally possible for the courts to facilitate a post-petition interjurisdictional agreement to arbitrate between representatives of the estates of the same company or different companies in the same group, again subject to arbitrability not being an issue. Moving appropriate cross-border issues to arbitration will obviate any argument on which court should resolve those issues. 

43. Why then the reticence to embrace ADR in cross-border insolvencies? ⁽⁶²⁾ I suggest that it is because of an unfamiliarity with deploying ADR in a different context. We will be missing an opportunity if the fog is not cleared.

44. For Synthetic Proceedings or ADR to work, interjurisdictional communication and cooperation is vital. In the case of Synthetic Proceedings, if the courts do not communicate and cooperate, it is difficult to see how the issue to be transferred and the terms of the transfer can be worked out, and the undertaking implemented. In the same vein, it is difficult to see how a cross-border mediation or arbitration agreement can be initiated and entered into without communication and cooperation. This brings me to my third point – a framework for interjurisdictional communication and cooperation between courts.

A framework for interjurisdictional communication and cooperation

45.  I have said earlier that courts have a vital role in calming troubled waters. Court to court communication and cooperation is critical to this. The Model Law and the MLG recognise this. They have made communication and cooperation one of their central pillars.⁽⁶³⁾

46. Cooperation and communication between courts is necessary for a multitude of reasons. These include addressing jurisdictional arbitrage; facilitating, amongst other things, successful asset freezes and coordinating asset sales; allowing for the sharing of information; reducing the risk of conflicting decisions; expediting the resolution processes; and preventing the depletion of asset value. There is another vital purpose which is not often articulated. Channels for communication and cooperation build relationships and trust, which in turn foster comity and enhance the prospect of finding solutions. 

47.   The best framework for interjurisdictional communication and cooperation is the Model Law and the MLG. But as model instruments, they have to be adopted as part of national law. This will take time. Further, the Model Law and the MLG do not stipulate the modalities for communication and cooperation, leaving that to be worked out by the courts in a given situation. Courts must respond to this lacuna, and they can do so in two principal ways. First, by formulating their frameworks for communication and cooperation. Second, by forming networks to share ideas and explore solutions. 

48.   The framework for communication and cooperation can take several forms. One example is bilateral or multilateral agreements between courts in the form of memoranda of understanding. Another is soft law instruments such as practice directions or registrar circulars that provide for court to court communication and cooperation.

49.   The Supreme Court of Singapore has signed several memoranda of understanding with foreign courts,⁽⁶⁴⁾ and is a party to bilateral frameworks that facilitate court-to-court communication in cross border insolvency proceedings. An example is the 2021 Protocol on Cross Border Insolvency Matters between the Federal Court of Malaysia and the Supreme Court of Singapore (the “Protocol”). The Protocol was recently used to apprise the Malaysian court of the progress of recognition proceedings in Singapore of the Malaysian restructuring of the Sapura group of companies.⁽⁶⁵⁾

50.   The implementation of a framework should be allied with courts initiating networks of insolvency judges. The Judicial Insolvency Network (“JIN”) is an exemplar. Why is a network like the JIN so important? Formed in 2016, the JIN is a network of insolvency judges from leading commercial jurisdictions. It was formed with the objective of fostering judicial thought leadership, formulating best practices for cross border insolvencies and facilitating court-to-court communication and cooperation. The JIN provides an exceptional forum for the frank exchange of ideas, promoting judicial appreciation of diverse approaches and fostering greater coherence in insolvency and restructuring laws. Through such interactions, the judges of the JIN have formed bonds of friendship and built trust and familiarity, thereby enhancing the prospects for cooperation. The importance of the JIN as a network of judges cannot be overstated.

51.   The JIN’s interactions have produced tangible results. In 2016, the JIN issued the Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters (the “JIN Guidelines”), which enumerated the principles for court to court communication and cooperation in cross-border insolvency matters.⁽⁶⁶⁾ The JIN has also published the Modalities of Court-to-Court Communication which set out the mechanics for engaging in communications, the Basic Guidelines for Communication and Cooperation between Courts in Cross Border Insolvency Matters (the “JIN Core Protocol”), which is a primer on the JIN Guidelines, and the JIN Admiralty Guidelines.⁽⁶⁷⁾ The JIN’s work continues.

52.   The JIN has had a positive effect beyond the instruments that it has issued. At the 11th meeting of the Council of ASEAN Chief Justices (“CACJ”) in Cebu in November 2024, two significant steps were taken by the CACJ. First, the CACJ passed a resolution for the establishment of a Standing Committee of ASEAN Insolvency Judges (the “Standing Committee”). Modelled on and inspired by the JIN, the Standing Committee provides a platform for ASEAN insolvency judges to share ideas and collaborate on issues concerning cross-border insolvency. It is no coincidence that the resolution in Cebu was soon after the first invitation by the JIN to ASEAN insolvency judges to attend its annual meeting in Singapore in June 2024. ASEAN was well represented at that meeting. Second, the Standing Committee was tasked by the CACJ to explore an ASEAN framework for communication and cooperation in cross-border insolvencies. The outcome is the soon to be unveiled ASEAN framework for Court-to-Court Communication, Coordination and Cooperation in cross-border insolvency proceedings, which is modelled on the JIN Core Protocol. 

53.   I would urge similar steps to be taken elsewhere. In a fractured and changing world, courts must endeavour to establish more pathways for collaboration and cooperation and more channels for communication to ensure optimal outcomes are achieved in cross-border insolvencies. By doing so, courts reaffirm their commitment to multilateralism and the rules-based order. 

54.   In concluding on my third point, I make two suggestions. First, in pushing forward such initiatives, courts should embrace flexible multilateralism, so that like minded courts can move forward first to respond to new and emerging issues, leaving the space and time for others to join when they feel they are ready. The JIN is a paradigm example of this. An emphasis on universal consensus may become a recipe for paralysis. Second, NGOs like INSOL, the International Insolvency Institute and the American College of Bankruptcy, just to name a few, have an instrumental role to play. They are in the privileged position of (a) being able to call key stakeholders as members, and (b) having access to the creditor and funding communities and relevant multilateral institutions. NGOs can therefore be positive forces for progress by bringing winds of change. This is an exhortation to NGOs to rise to the challenge and embrace the responsibility.   

Conclusion

55.   In a world of transformation and deepening fragmentation, our collective commitment to modified universalism must remain unwavering. It offers us our best and perhaps even our only hope. However, an unwavering commitment does not mean a steadfast refusal to adapt to change. Modified universalism must evolve or risk losing its relevance. It is our shared responsibility to take modified universalism forward into a new era. In that journey, we must not forget that the wheels of modified universalism are oiled by the 3Cs – communication, cooperation and coordination. 

56.   Thank you.

^{(1)   See Justice Kannan Ramesh, “Cross-Border Insolvencies: A New Paradigm”, Speech delivered at the International Association of Insolvency Regulators’ 2016 Annual Conference and General Meeting, Singapore (6 September 2016) (“IAIR Speech: A New Paradigm”) at para 3.}