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Cross-Border Insolvency In Brazil: The UNCITRAL Model Law Dances to A Samba Beat
After years of debate, Brazil recently enacted legislation amending its bankruptcy statute and modernizing the Brazilian insolvency system. The new legislation provides new domestic tools to rescue distressed companies from disaster, including rules that enable DIP financing and allow creditors to propose a plan when the debtor's proposal is unsatisfactory. In the cross-border insolvency area, the new law implements the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross–Border Insolvency.
The basic framework of the UNCITRAL Model Law familiar to insolvency practitioners has been road-tested in 48 countries prior to Brazil's recent legislative change. The Model Law seeks to identify the jurisdiction where the debtor's center of main interests (COMI) is located, and deems the insolvency proceeding filed in that jurisdiction the "foreign main proceeding." Under Brazil's version of the Model Law, an insolvency proceeding filed in a jurisdiction other than the debtor's COMI and where the debtor engages in non-transitory economic activities or holds property is a "foreign non-main proceeding." The Model Law's vision is that a troubled multi-national business will be able to break through the disparate and sometimes contradictory insolvency regimes in different nations. The Model Law promotes cooperation across borders in order to accomplish laudable objectives, such as the rescue of financially troubled businesses.
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