Mark McKillop Barrister

In March this year I had the pleasure of giving a seminar on cross-border insolvency to the Commercial Litigation Accredited Specialist Study Group, at the kind invitation of Matthew Hicks, partner at Hicks Chessell Oakley Williams, Lawyers & Notary.

A copy of the seminar power point presentation can be downloaded here:

The seminar followed a recognition application in which I appeared on that firm’s instructions, regarding the local recognition of the South African liquidation of a worldwide crypto ponzi scheme known as Mirror Trading. A link to the recognition case can be found here: Bester v Mirror Trading International (Pty) Ltd (in liq) [2023] FCA 1194.

The seminar covered the basic concepts behind cross border recognition including:

• what is cross border insolvency
• the “universalist” v “territorialist” approach to managing it;
• an overview of the UNCITRAL model law adopted on 22 May 1997 and implemented in Australia in the Cross-Border Insolvency Act 2008 (Cth) (CBI)

I also reviewed the basic concepts applying under the CBI and requirements for gaining recognition. The key issues covered include:

• what is a “foreign main” proceeding and how is one established for regcognition purposes;
• the COMI or centre of main interest;
• the articles of the model law relevant to a recognition application;
• procedural requirements including notice, and the range of orders open to the court under the CBI.

Thanks to Matthew for the invitation and the entire group for having me.

As a sequel to the recognition we also sought and obtained a shelf order for recoveries from “winners” under the scheme, in a decision reported here: Bester, in the matter of Mirror Trading (Pty) Ltd (in liquidation) [2024] FCA 305.