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Recognition of foreign proceedings
Under what circumstances will the courts in your jurisdiction recognise the validity of foreign insolvency proceedings?
Recognition of foreign proceedings is done in accordance with the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross‑Border Insolvency, which was incorporated into Australian law by the Cross-Border Insolvency Act 2008 (Cth).
Winding up foreign companies
What is the extent of the courts’ powers to order the winding up of foreign companies doing business in your jurisdiction?
The Corporations Act 2001 (Cth) enables the compulsory winding up of foreign companies that carry on business in Australia. In general, the statutory provisions that govern the courts’ powers to order and supervise the winding up of companies also apply to foreign companies, with some adaptations as necessary.
Centre of main interests
How is the centre of main interests determined in your jurisdiction?
In applying the centre of main interests criterion, the Australian courts have generally followed the approaches of the English courts and the European Court of Justice. In short, the ‘centre of main interests’ is “where the debtor conducts the administration of [its] interests on a regular basis”. Identifying the centre requires looking at objective criteria that can be ascertained by third parties (including creditors and potential creditors).
What is the general approach of the courts in your jurisdiction to cooperating with foreign courts in managing cross-border insolvencies?
Cooperation with foreign courts is governed by Chapter IV of the UNCITRAL Model Law on Cross‑Border Insolvency. In addition, the Corporations Act provides that courts in external administration matters must act in aid of the courts of certain countries prescribed in the regulations.