MtGox Co., Ltd (Re), 2014 ONSC 5811

Abstract

If an international model law has been adopted in two countries in reasonably similar terms, it is instructive for lawyers from the one country, who lack cases decided in terms of their local version of the model law, to consider cases decided in the other country as a source of examples and guidelines with respect to the application of that model law. MtGox Co., Ltd (Re) (‘MtGox’) was decided in terms of the Canadian adaptation of the UNCITRAL Model Law on Cross-Border Insolvency Law (1997) (the Model Law), which is in full force in Canada. By contrast, the South African adaptation of the Model Law in the Cross-Border Insolvency Act 24 of 2000 (the CBIA) is still not in full force in this country, because the Minister has not yet designated the states to which the statute applies (ss 2(2)-2(5)). So there are no South African precedents that can be commented on as regards the interpretation and application of this statute in practice. However, as the relevant South African crossborder insolvency provisions form part of the latest Insolvency Bill about which there is some interest (see Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery MP, at the INSOL Africa Round Table (2015) available from http://www.gov.za/speeches/insol-africa-round-table-12-oct-2015-0000 (accessed 2016-10-31)), it is submitted that a consideration of the relevant crossborder insolvency provisions and then some comparisons with the equivalent Canadian provisions may prove instructive for South African lawyers, for when they do come to face interpretational issues in terms of the local provisions in practice. More particularly, in the search for a viable approach to determining the debtor’s centre of main interests (COMI), as no such approach is set out in detail in the Model Law or in its Canadian or South African adaptations, it is submitted that a consideration of the two approaches adopted in Canadian case law may offer a fruitful ground for comparison in South African law.