Towards Modified Universalism: The Recognition and Enforcement of Cross-border Insolvency Judgments and orders in Malawi

Abstract

There is consensus that cross-border insolvency laws need to be effective and efficient. To do this, they must ensure the goals of achieving certainty and predictability on private international law questions; the maximization of the debtor’s estate for distribution to creditors; speed and efficiency; fostering cooperation and communication between local and foreign courts and insolvency practitioners as well as aiding the reorganization or rescue of ailing enterprises. Malawi currently has no statute dealing with cross-border insolvency and relies on the English common law as the only source of law on this subject. Part X of the Insolvency Bill 2013 of Malawi, now before the legislature, adapts the UNCITRAL Model Law on Cross-border insolvency to govern the recognition and enforcement of cross-border insolvency judgments and orders in Malawi. This thesis has the main objective of critically examining whether the proposed change in the legal regime on cross-border insolvency in Malawi is justified and meets the goals of effectiveness and efficiency and if not, what improvements or alternatives need to be considered