Legal Project Management Plan & Checklist
Practitioner plan for a foreign representative seeking recognition of a foreign insolvency proceeding in Australia under the Cross-Border Insolvency Act 2008.
How does a foreign liquidator or trustee get recognised in Australia?: The UNCITRAL Model Law on Cross-Border Insolvency has the force of law in Australia (s 6 Cross-Border Insolvency Act 2008). A foreign representative may apply directly to the court (Article 9) for recognition of the foreign proceeding in which it was appointed (Article 15(1)). The application must be accompanied by evidence of the proceeding and the appointment and a statement of all foreign proceedings known to the representative (Article 15(2) and (3)), and by a statement of known Australian bankruptcy proceedings, receiver or controller appointments and Chapter 5 Corporations Act proceedings (s 13).
Which court hears a cross-border insolvency recognition application?: If the debtor is an individual, the Federal Court of Australia; for any other debtor, the Federal Court or the Supreme Court of a State or Territory (s 10). In the Federal Court an application about an individual follows Part 14 of the Federal Court (Bankruptcy) Rules 2016 and is made by application in Form B2, and an application about any other debtor follows Division 15A of the Federal Court (Corporations) Rules 2000 and is made by originating process in Form 2.
What is the difference between a foreign main and a foreign non-main proceeding?: A foreign main proceeding takes place in the State where the debtor has the centre of its main interests; a non-main proceeding takes place in a State where the debtor has an establishment (Article 2(b), (c) and (f)). In the absence of proof to the contrary, the debtor's registered office, or an individual's habitual residence, is presumed to be the centre of main interests (Article 16(3)). Recognition of a main proceeding automatically stays individual actions and execution against the debtor's assets and suspends the right to dispose of them (Article 20(1)).
What relief can the court grant to a foreign representative?: From filing until the application is decided, provisional relief where it is urgently needed to protect the debtor's assets or the creditors' interests (Article 19). After recognition, any appropriate relief, including stays, examination of witnesses and delivery of information, and entrusting the administration, realisation or (if local creditors are adequately protected) distribution of Australian assets (Article 21). The court must be satisfied that creditors and other interested persons, including the debtor, are adequately protected (Article 22(1)).
Jurisdiction: Federal Court of Australia, generally in the Commercial and Corporations National Practice Area, applying the Cross-Border Insolvency Practice Note (GPN-XBDR); for a debtor that is not an individual, the Supreme Court of a State or Territory also has jurisdiction (s 10).
The Process at a Glance: The lawyer confirms that the foreign proceeding and the representative meet the Model Law definitions, identifies whether the debtor is an individual or another entity (which decides the court and the rules), assesses the debtor's centre of main interests, and searches for Australian insolvency proceedings and appointments. The application is filed with the statements required by Article 15 and s 13 and a verifying affidavit, together with an application for directions about service. Provisional relief is sought if assets are at risk. Known creditors are sent notice of the filing and a notice is published in a daily newspaper. At the hearing the court recognises the proceeding as main or non-main if the Article 17 requirements are met. The order is entered, served and notified, further relief is sought under Article 21, cooperation is arranged, and the representative keeps the court informed.
Key Legislation: Cross-Border Insolvency Act 2008 (Cth) ss 6, 8, 9, 10, 13, 14, 16, 17 and 18 and Schedule 1 (Model Law) Articles 2, 6, 9, 15 to 28; Federal Court (Bankruptcy) Rules 2016 (Cth) rr 2.04 and 14.01 to 14.09; Federal Court (Corporations) Rules 2000 (Cth) rr 2.7, 2.9 and 15A.1 to 15A.9; Cross-Border Insolvency Practice Note (GPN-XBDR).
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Recognition of a Foreign Insolvency Proceeding (Foreign Representative) matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for Bankruptcy & Insolvency cases, outlining the standard RESTRUCTURING process. Utilize these tracking templates to manage your legal cases efficiently.
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Confirm that recognition is available and decide the relief to seek.
Have an application that meets Article 15 and the applicable rule.
Start the proceeding and protect assets until the recognition hearing.
Obtain the recognition order at the earliest possible time.
Use recognition to protect and realise Australian assets and keep the court informed.
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