Editor’s Note: The Fourth Seminar of the International Commercial Expert Committee of the Supreme People’s Court and Reappointment (New appointment) Ceremony of Expert Members was held successfully on September 25, 2024. Over 40 experts from more than 20 countries and regions focused on the theme of the “Collaborative Dialogue, Diverse Integration, Peaceful Development” during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of speeches delivered by the members of expert committee and distinguished guests during the discussion session on Topic Three Cross-border judicial cooperation in commercial courts: international agreements and judicial practice would be posted on the CICC’s website.

The Observations on the SICC’s

Cross-Border Insolvency and Restructuring Cases

SHI Jingxia

Professor of the Law School of the Renmin University of China

Former Dean of Law School at China University of International Business & Economics

This presentation provides observations and reflections based on the Singapore International Commercial Court (SICC)’s first cross-border restructuring ruling in January 2024 and its first approval of a cross-border pre-packaged Scheme of Arrangement (SOA) in April 2024.

First, the background of the SICC’s dealing with cross-border insolvency and restructuring cases reflects Singapore’s groundbreaking progress over the past decade in establishing itself as a center for international commercial dispute settlement and international insolvency and restructuring. The SICC was established in 2015 as part of the Supreme Court of Singapore, operating as a division of the General Division of the High Court. In 2017, Singapore adopted the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency (MLCBI). In October 2022, the SICC amended its procedural rules to clarify its jurisdiction over cross-border insolvency and restructuring cases and appointed several renowned international judges in the field of insolvency and restructuring.

Second, on January 18, 2024, the SICC issued its first cross-border restructuring ruling. This ruling recognized the reorganization proceeding of Indonesian airline Garuda as foreign main proceeding, even though the Indonesian Supreme Court had not yet issued a final decision in the domestic appeal. The SICC ruled to recognize and enforce the composition plan approved in the domestic Indonesian restructuring proceedings (PKPU) and recognized by the Jakarta Commercial Court. Furthermore, it clarified the SICC’s understanding of the scope of the “public policy exception” under Article 6 of the Model Law adopted by Singapore, particularly the narrowness of the concept and the requirement for a higher threshold for establishing violation of public policy to better promote the purposes and objectives of the Model Law (advancing so-called modified universalism) and the principle of comity, as well as the current trend of restrictive interpretations of public policy in various countries, and the consistency of a strict concept of public policy with the position in international arbitration. At the same time, the case reflects the SICC’s abandonment of the over 130-year adherence to the Gibbs Rule under the traditional English law, in line with the development trends of modern cross-border insolvency and restructuring.

Third, on April 26, 2024, the SICC approved the pre-packaged scheme of arrangement (SOA) for No Va Land (NVL), one of the largest real estate developers in Vietnam, involving the restructuring of $300 million in convertible bonds governed by New York law. The presentation will discuss how the SICC determined that NVL, a company registered in Vietnam, met the criteria for having a substantial connection with Singapore by considering various factors, as well as how NVL’s pre-packaged scheme met statutory requirements, as well as other contentious issues in this case.

Through these two milestone cases, the presentation attempts to analyze the comprehensive background, subjective and objective reasons, and subsequent changes in relevant legal systems related to these two SICC rulings. It then examines how the China International Commercial Court (CICC) can enhance its support for the “Belt and Road” initiative and effectively address China’s foreign-related judicial needs in response to high-standard opening-up in a new era, particularly in areas such as cross-border insolvency and restructuring.

*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.