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Singapore International Commercial Court Issues First Decision on Recognition of Cross-Border Bankruptcy Cases under Model Law

Established in 2015 as a trusted neutral forum to meet increasing demand for effective transnational dispute resolution, the Singapore International Commercial Court (the "SICC") is a division of the General Division of the High Court and part of the Supreme Court of Singapore. On January 18, 2024, the SICC handed down its first insolvency-related ruling. In Re PT Garuda Indonesia (Persero) Tbk [2024] SGHC(I) 1 ("PT Garuda"), the SICC granted recognition in Singapore of an Indonesian debtor-airline's "suspension of payments" proceeding under Singapore's version of the UNCITRAL Model Law on Cross-Border Insolvency (the "Model Law"). The SICC also recognized and enforced the terms of a composition plan approved by creditors and confirmed by an Indonesian court. In so ruling, the SICC overruled objections to recognition interposed by disgruntled aircraft lessors asserting, among other things, that recognition of the Indonesian proceeding would violate Singapore's public policy because creditors were treated unfairly in the debtor's composition plan. 

The decision provides a wealth of guidance regarding practice, procedure, and judicial standards governing the recognition of cross-border insolvency proceedings in the aftermath of Singapore's adoption of the Model Law in 2017.

The Model Law

In 1997, the United Nations Commission on International Trade Law ("UNCITRAL") adopted the Model Law as a common framework of rules and procedures governing bankruptcy and insolvency proceedings involving debtors that do business or have creditors or other stakeholders in more than one country. The Model Law is premised on "comity," or cooperation among courts, court functionaries, and professionals of different nations for the efficient administration of debtors and their assets in bankruptcy and restructuring proceedings. If a bankruptcy or insolvency proceeding has been filed in one country, the debtor's accredited representative can seek "recognition" of that proceeding under the Model Law in the courts of other nations for the purpose of, among other things, protecting the debtor's assets against collection efforts by local creditors or repatriating the debtor's assets to the home forum.

As of 2024, the Model Law had been implemented by nearly 60 nations or territories, including the United States (in chapter 15 of the U.S. Bankruptcy Code, 11 U.S.C. §§ 1501 et seq.), the United Kingdom, Japan, and Singapore (discussed below). In discussing the provisions of the Model Law below, we have included citations to the corresponding provisions of chapter 15 for ease of reference. 

Under the Model Law, the "foreign representative" of a foreign debtor may file a petition in a bankruptcy or insolvency court in a Model Law jurisdiction seeking recognition of the debtor's "foreign proceeding" in another jurisdiction (Model Law or otherwise). See Model Law Art. 2; Art. 11 (11 U.S.C. § 1515(a)). Article 15.2 of the Model Law specifies the information required in an application for recognition, which includes documentary (or other acceptable) evidence of the commencement of the debtor's foreign proceeding and the appointment of the foreign representative. Id. at Art. 15.2 (11 U.S.C. § 1515(b)).

A "foreign representative" is defined as "a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor's assets or affairs or to act as a representative of the foreign proceeding." Id. at Art. 2(d) (11 U.S.C. § 101(24)). 

The Model Law defines a "foreign proceeding" as:

[A] collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation.

Id. at Art. 2(a) (11 U.S.C. § 101(23)). 

More than one bankruptcy or insolvency proceeding may be pending with respect to the same foreign debtor in different countries. The Model Law therefore contemplates recognition in a Model Law jurisdiction of both a foreign "main" proceeding—a case pending in the country where the debtor's "centre of main interests" ("COMI") is located—and foreign "non-main" proceedings, which may be pending in countries where the debtor merely has an "establishment." Id. at Art. 2(b) and (c) (11 U.S.C. § 1502).

In the absence of evidence to the contrary, "the debtor's registered office, or habitual residence in the case of an individual, is presumed to be" the debtor's COMI. Id. at Art. 16.3 (11 U.S.C. § 1516(c)). In comparison, an establishment is defined as "any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services. Id. at Art. 2(f) (11 U.S.C. § 1502(2)). 

If an application for recognition satisfies the requirements set forth in the Model Law, it is mandatory for the court presiding over the case to recognize the debtor's foreign proceeding as either a foreign main proceeding (if pending in a COMI jurisdiction) or a foreign non-main proceeding (if pending in an establishment jurisdiction). Id. at Art. 17 (11 U.S.C. § 1517(a)). 

Certain kinds of provisional relief, including injunctive relief, may be granted by the presiding court in the interim between the filing of a recognition application and the issuance of the court's decision on the application. Id. at Art. 19 (11 U.S.C. § 1509).

Upon recognition of a foreign main proceeding, an automatic stay or moratorium is triggered to prevent creditor collection efforts against the debtor or its assets. Id. at Art. 20 (11 U.S.C. § 1520). Absent evidence to the contrary, recognition as a foreign proceeding is deemed to be proof that the debtor is insolvent. Id. at Art. 31. (11 U.S.C. § 1531, but only for purposes of an involuntary chapter 7 or 11 case filed against the debtor). 

In addition, after recognition of a foreign proceeding, the court, "where necessary to protect the assets of the debtor or the interests of the creditors," has the discretion to order a wide variety of relief to the foreign representative. This includes injunctive relief, restrictions on the transfer or other disposition of the debtor's assets, discovery, entrusting the debtor's property located in the jurisdiction to the foreign representative or a party designated by the court (provided that local creditors' rights are adequately protected), and any "additional relief that may be available [to the foreign representative] under the laws of the [recognizing jurisdiction]." Id. at Art. 21 (11 U.S.C. § 1521). 

Article 23 of the Model Law provides that, upon recognition of a foreign proceeding, the foreign representative has standing to commence litigation to redress pre-recognition actions that are detrimental to creditors, such as avoidance actions. Id. at Art. 23 (11 U.S.C. § 1523, but only in a case commenced by or against the debtor under another chapter of the Bankruptcy Code). 

The Model Law includes a "public policy" exception to the granting of any relief (recognition or otherwise) under its provisions. It states that "[n]othing in this Law prevents the court from refusing to take an action governed by this Law if the action would be manifestly contrary to the public policy of this State." Id. at Art. 6 (11 U.S.C. § 1506). In addition, Article 22 of the Model Law provides that, "[i]n granting or denying [pre- or post-recognition] relief … or in modifying or terminating relief …, the court must be satisfied that the interests of the creditors and other interested persons, including the debtor, are adequately protected." Id. at Art. 22 (11 U.S.C. § 1522).                                          

Guidelines and procedures for cooperation, coordination, and communication among the courts and foreign representatives, a key aspect of the Model Law, are set forth in Chapters IV and V (Arts. 25 through 30) (11 U.S.C. §§ 1525–1530). 

Other Cross-Border Insolvency Model Laws

Since 1997, the explosion of cross-border bankruptcy and insolvency cases prompted UNCITRAL to formulate other model laws designed to provide a framework for recognizing and enforcing insolvency-related judgments (the Model Law on Recognition and Enforcement of Insolvency-Related Judgments (2018) (the "IRJ Model Law")) and to equip implementing nations with legislation addressing domestic and cross-border bankruptcies or insolvencies of enterprise groups (the Model Law on Enterprise Group Insolvency (2019) (the "EGI Model Law")). In addition, the increasing need for cooperation and coordination in cross-border cases prompted the Judicial Insolvency Network to develop Guidelines for Communication and Cooperation Between Courts in Cross-Border Insolvency Matters (2016) (the "JIN Guidelines") and to adopt Modalities of Court-to-Court Communication (2019) (the "Modalities").

These guidelines and modalities have since been adopted and implemented by many courts overseeing cross-border bankruptcy cases. Prior to the creation of the JIN Guidelines, communication between courts involved in "parallel" bankruptcy or insolvency proceedings was often nonexistent or poorly coordinated, in many cases achieved by means of ad hoc protocols. This created significant delay and uncertainty and sometimes resulted in conflicting rulings from the courts involved. 

The Model Law in Singapore and Indonesia

In Singapore, the Model Law was introduced by way of an amendment to the Companies Act that became effective in 2017. As enacted in Singapore, the Model Law is the Third Schedule to the Insolvency, Dissolution, and Restructuring Act 2018 (2020 rev. ed) (the "Singapore Model Law"). At the time it was introduced, the Model Law was part of significant substantive changes to Singapore's insolvency and restructuring regime, including the introduction of an automatic stay of creditor collection efforts, super-priority financing, and mechanisms to confirm restructuring plans over the objections of creditors. The Singapore Model Law applies only to corporate entities.  

In February 2017, Singapore also adopted the JIN Guidelines and, effective June 2020, the Modalities. As of the beginning of 2024, Singapore had not adopted the IRJ Model Law or the EGI Model Law but is studying the advisability of doing so.

Indonesia has not enacted the Model Law, nor has it ratified an international treaty that would enable Indonesian courts to recognize restructuring or insolvency proceedings commenced outside of Indonesia or to enforce the rulings of foreign insolvency courts. Its bankruptcy regime is still premised on the concept of "territoriality," a principle that limits bankruptcy subject matter jurisdiction to property located within its territory. Law No. 37 of 2004 on Bankruptcy and Suspension of Payments (the "IBL") is the principal source of insolvency law in Indonesia, although it is complemented by other laws. The IBL provides for both bankruptcy proceedings and proceedings involving the suspension of debt payment obligations (Penundaan Kewajiban Pembayaran Utang or "PKPU"). Indonesia has also not adopted the JIN Guidelines or the Modalities.

PT Garuda

PT Garuda Indonesia (Persero) Tbk (the "debtor") is the state-owned national airline of Indonesia. It is registered, domiciled, and has a registered office in Jakarta, with a principal place of business located at the Soekarno-Hatta International Airport, Jakarta's main international airport. Key business decisions are made from the Jakarta office, and all of the debtor's directors and a majority of its employees are Indonesian nationals. 

The debtor is registered in Singapore as a foreign company. It has an office in Singapore as well as aircraft assets and bank accounts.

In October 2021, one of the debtor's creditors commenced a PKPU (suspension of payments) proceeding against the debtor in the Jakarta Commercial Court. On June 27, 2022, the court confirmed ("homologated") a "composition plan" for the debtor that had been approved by the holders of more than 97% of the debtor's $8 billion in debt. In addition to specifying distributions to various classes of creditors, the plan included provisions to discharge the debts of various non-debtor affiliates, including Garuda Indonesia Holiday France ("Garuda France").

The debtor sublet certain aircraft leased by Garuda France from two aircraft-lessors (collectively, "Greylag"). Greylag actively participated in the PKPU proceeding and voted against the composition plan. It appealed the order confirming the plan, but the Indonesia Supreme Court dismissed the appeal. In addition, the Jakarta Commercial Court dismissed Greylag's motion to nullify the confirmation order. Greylag also appealed that ruling to the Indonesia Supreme Court (the "nullification appeal").

Greylag and certain other creditors also filed winding-up, liquidation, or enforcement proceedings against the debtor in Australia and France, but the cases were dismissed or, in the case of a French court order of attachment, overturned. Greylag also initiated two arbitration proceedings in Singapore against the debtor and Garuda France.  

The debtor's CEO and its finance director, as board-appointed joint foreign representatives (the "FRs"), filed a petition on September 23, 2022, in the U.S. Bankruptcy Court for the Southern District of New York seeking recognition of the PKPU proceeding under the U.S. version of the Model Law—chapter 15 of the Bankruptcy Code. The U.S. bankruptcy court, with the consent of the parties (including Greylag), entered an order recognizing the PKPU proceeding as a foreign main proceeding on October 26, 2022. In November 2022, the FRs filed an application for an order recognizing and enforcing the debtor's composition plan in the United States. However, Greylag objected on various grounds, and the FRs withdrew the application in May 2023.

On November 22, 2022, the FRs filed a petition in the SICC seeking, among other things, recognition of the PKPU proceeding under the Singapore Model Law and enforcement of the composition plan in Singapore.

Greylag did not contend that the PKPU proceeding did not qualify as a "foreign main proceeding." Greylag instead opposed the recognition application on two main grounds. First, Greylag argued that the petition was filed prematurely in light of the pending nullification appeal in Indonesia, which may lead to the annulment of the composition plan, as well as the pending petition seeking recognition and enforcement of the composition plan in the United States under chapter 15 of the U.S. Bankruptcy Code. 

Second, Greylag also argued that recognition of the PKPU proceeding would be contrary to the public policy of Singapore under Article 6 of the Singapore Model Law (which tracks the language of Article 6 of the Model Law, with one exception discussed below) because the PKPU proceeding and voting on the composition plan were conducted: (i) without equitable treatment of unsecured creditors by offering different terms to each creditor such that there was dissimilarity in treatment; and (ii) without adequate disclosure of information regarding the release of claims against non-debtor Garuda France. Greylag also sought discovery of documents related to the aircraft lease arrangement with Garuda France, the rationale for releasing claims against Garuda France in the composition plan, and financial statements of the debtor and its affiliates. 

The Singapore Court's Decision

 A three-judge panel of the SICC granted the petition for recognition of the PKPU proceeding to be recognized as a foreign main proceeding in Singapore and dismissed Greylag's discovery request.

Writing for the SICC panel, former U.S. Bankruptcy Judge Christopher S. Sontchi first addressed Greylag's discovery request. Justice Sontchi denied the motion because Greylag had not demonstrated that the requested documents were material or relevant to its assertion that enforcement of the composition plan in Singapore was contrary to public policy. PT Garuda, ¶¶ 41–44. 

Next, the court concluded that the PKPU proceeding should be recognized as a "foreign main proceeding" under the Singapore Model Law. According to Justice Sontchi, the PKPU proceeding satisfied all of the requirements for recognition prescribed in Article 17 of the Singapore Model Law, and Greylag "did not take issue with any of the formal and substantive requirements for recognition." Id. at ¶¶ 45, 51–59. Therefore, the SICC determined, recognition was mandatory under Article 17 of the Singapore Model Law.

The court made certain key observations relating to the approach to hearing a recognition proceeding. Justice Sontchi explained that the Singapore Model Law "gives effect to the principle of modified universalism through a procedural framework which not only permits but encourages cooperation and coordination between jurisdictions in cases of cross-border insolvencies." Id. at ¶ 67.

The concept of modified universalism, he noted, recognizes that the insolvency laws and procedures of each nation may be different "but takes the view that such differences should not stand in the way of the recognition of foreign insolvency proceedings and the benefits that would accrue to creditors as a collective whole through a global effort to coordinate the distribution of assets in a cross-border collapse." Id. at ¶¶ 63–69. Justice Sontchi further explained that the principles of modified universalism and comity are closely related, stating that "a key aspect of comity requires that courts eschew an inquiry into the substantive merits of foreign law and the findings made by the foreign court in the foreign proceedings. Id. at ¶ 71.

Addressing a threshold issue, the court also explained that the "Gibbs Rule," whereby the discharge of a debt is not effective unless it is in accordance with the law governing the debt, did not apply in this case. See Antony Gibbs & Sons v. La Société Industrielle et Commerciale des Métaux [1890] LR 25 QBD 399. According to Justice Sontchi, although the Gibbs Rule can preclude recognition of a foreign proceeding, restructuring plan, or judgment where such proceeding involves the compromise or discharge of a debt governed by foreign law (which was the case here, as the aircraft lease agreements were governed by New York law), "the present case falls squarely within the exception to that rule, namely that the Gibbs Rule does not apply where a creditor submits to the jurisdiction of a foreign court, either by submitting its claims in the foreign insolvency proceeding or otherwise agreeing to be bound thereby." Id. at ¶ 61. 

He also expressed skepticism regarding "the soundness of this rule in the context of modern cross-border insolvency." Id. at ¶ 62; see also Re Pacific Andes Resources Development Ltd and other matters [2018] 5 SLR 125 (doubting the soundness of the Gibbs Rule).

The court then went on to consider the objections raised by Greylag under Article 6 of the Singapore Model Law and rejected Greylag's arguments regarding both the premature nature of the recognition application and public policy. Initially, Justice Sontchi noted that because the FRs had withdrawn their motion seeking enforcement of the composition plan in the United States under chapter 15, only the pendency of the nullification appeal before the Indonesia Supreme Court was relevant to the court's inquiry. The prematurity of the application was also not seriously pursued at the hearing.  

According to the court, Greylag failed to cite any provision in the Singapore Model Law to support its objection, and Greylag's argument "runs counter to the mandatory effect of giving recognition to a foreign proceeding once the requirements in Article 17 of [the Singapore Model Law] are satisfied." Id. at ¶ 76. Furthermore, Justice Sontchi explained, Article 17 of the Singapore Model Law "does not require a foreign proceeding to be concluded, or that all avenues of appeal and review must be exhausted in the foreign jurisdiction before an application for recognition of the foreign proceeding is brought." Id. at ¶ 77.  

He also emphasized that the Singapore Model Law expressly contemplates that a recognition order can be modified or terminated if circumstances change that would invalidate the "substratum" for recognition, such as reversal on appeal of an order confirming a compromise or reorganization plan. Id. at ¶¶ 78–80. The court observed that it is open to Greylag to apply to the Singapore courts under Article 17(4) to request termination of both the recognition of the PKPU proceeding and any ancillary reliefs granted in support of recognition. Id. at ¶ 80.

Next, the court turned to Greylag's public policy argument. Given the purpose of advancing the goal of modified universalism and principles of comity, it flows that a high threshold is required to find that the recognition of a foreign proceeding is in breach of Singapore public policy under Article 6 of the Singapore Model Law. Id. at ¶ 89, 94.

After surveying court decisions among Model Law countries, the SICC concluded that the public policy exception in Article 6 is "to be applied restrictively," and "a challenge brought under Article 6 of the [Singapore Model Law] on the ground of public policy will succeed only in limited circumstances." Id. at ¶ 92.

Justice Sontchi acknowledged that a court must be sensitive to the differences among the bankruptcy and insolvency laws of different countries. Even so, he wrote, "[t]he fact that foreign insolvency laws and procedures operate differently from what is normally expected and experienced in the domestic insolvency regime cannot, without more, give rise to a finding that the foreign proceeding is abhorrent and contrary to Singapore public policy." Id. at ¶ 95. 

The SICC noted that the public policy exception stated in Article 6 of the Singapore Model Law differs from the exception set forth in Article 6 of the Model Law because the latter provides that the court can refuse to grant relief that is "manifestly contrary" to public policy rather than merely "contrary" to public policy. Regardless of the distinction, Justice Sontchi reasoned, the public policy exception in the Singapore Model Law does not establish a lower threshold for finding a breach of public policy (id. at ¶¶ 84–94). Instead, "any successful challenge against recognition on the basis of [the public policy exception in the Singapore Model Law] must be narrow in scope; such a challenge will succeed only if the recognition and the grant of relief is contrary to the fundamental public policy of Singapore." Id. at ¶ 95. "[A]pplying a low threshold under Article 6 of the [Singapore Model Law]," Justice Sontchi wrote, "would permit creditors to stultify recognition proceedings on the basis of alleged breaches of public policy, however insignificant." Id. at ¶ 94.

According to the SICC, based upon relevant case law, challenges brought under the public policy exception are likely to succeed when: (i) recognition is sought of a foreign proceeding commenced in violation of a moratorium; (ii) relief is sought in the "receiving" court that is prohibited by the civil or criminal laws of the country in which the foreign proceeding is pending; (iii) the foreign representative acted in bad faith or failed to make full and frank disclosure of material facts to the receiving court; (iv) recognition is sought of a foreign proceeding commenced in breach of the receiving court's order granted in a prior proceeding; (v) "there is a failure to accord due process to the creditors and other relevant stakeholders in the foreign insolvency process"; or (vi) "the insolvency proceedings or foreign court orders are tainted by fraud." Id. at ¶¶ 96–98.

In relation to Greylag's objections, the SICC explained that due process is "a fundamental tenet of Singapore public policy" and requires that creditors be notified of, and permitted to participate in, insolvency proceedings that impact their claims and rights. Id. at ¶¶ 99, 101. Due process also requires disclosure to creditors of adequate information for them to make an informed decision regarding their rights in the insolvency proceeding. In addition, Justice Sontchi noted, upholding due process is a component of the "broader requirement that creditors participating in foreign proceedings must be treated fairly and equitably." Id. at ¶ 102.

The SICC ruled that the facts before it did not raise any concerns regarding due process, noting that Greylag's public policy objection was "directed at the content of substantive Indonesian insolvency laws and the merits of the [order approving the composition plan]." According to Justice Sontchi, "the challenges raised are primarily on the merits disguised as public policy objections." Id. at ¶ 103.

The SICC rejected Greylag's argument that the debtor's creditors were treated unfairly in the PKPU proceeding because: (i) creditors were classified improperly for purposes of voting on the composition plan; (ii) the debtors negotiated with some but not all unsecured creditors regarding the terms of alternative aircraft leasing arrangements; and (iii) the composition plan released claims against non-debtor Garuda France, thereby discharging Greylag's right to pursue Garuda France for payment of its claims.

Justice Sontchi explained that the classification scheme sought by Greylag—involving subclassification of creditors rather than classifying them all together—is authorized under Singapore law, but not Indonesia law, which provides for classification only of preferred, secured and unsecured claims. This argument, he wrote, is an impermissible "criticism of the structure of the Indonesian insolvency scheme, as opposed to an issue of fair and equitable treatment of creditors." Id. at ¶¶ 118, 120.

According to the SICC, the division of creditors into subclasses is not "a fundamental tenet of the fair and equitable treatment of creditors recognised as part of Singapore public policy such that these requirements must be met before a foreign restructuring or insolvency procedure may be recognised." Id. at ¶ 117. Moreover, Justice Sontchi explained, merely providing some unsecured creditors with different repayment terms than others under a composition plan is not so unfair or prejudicial that it offends Singapore public policy. Instead, he wrote that, "[f]or a restructuring plan to be commercially viable and successful, some aspect of differentiated creditor treatment must be expected." Id. at ¶ 121.

The SICC found that all of the debtor's creditors, including Greylag and other aircraft lessors, were provided with adequate information regarding the course of the restructuring proceeding and the terms of the composition plan, and there was therefore "no issue regarding the transparency and openness of the PKPU Proceeding." Id. at ¶ 124. Greylag's complaint, the court explained, did not concern the fair and equitable treatment of creditors overall but, rather, the debtor's commercial decision not to continue its aircraft leasing relationship with Greylag entities on terms acceptable to them. Id. at ¶ 123. 

The SICC rejected Greylag's assertion that the composition plan's third-party release violated Singapore public policy because creditors were not provided with adequate information regarding the Garuda France release to exercise their voting rights meaningfully. According to Justice Sontchi, adequate information concerning the terms of the composition plan (including the release) was disclosed to all creditors before they voted on the plan, and Greylag never requested disclosure of financial information regarding Garuda France until it filed its written submissions with the SICC in connection with the recognition application. Id. at ¶¶ 130–32. 

The court emphasized that Greylag never raised its public policy argument in the PKPU proceeding. Moreover, the SICC noted that Greylag's assertion that the terms of the modification plan were unfair and prejudicial to creditors was belied by the fact that creditors overwhelming voted to accept the plan. Id. at ¶¶ 135, 136.

Finally, the SICC concluded that, following the court's recognition of a foreign proceeding, Article 21(1) of the Singapore Model Law authorizes the court to recognize and enforce a foreign insolvency court's orders under the "chapeau" of "any appropriate relief," rather than "any additional relief that may be available" under Singapore law within the meaning of Article 21(1)(g). The SICC reached that conclusion because, among other things, "[n]othing in the IRDA confers on Singapore insolvency officeholders the power to apply for the recognition and enforcement of such plans and orders." Id. at ¶¶ 143–51.

Because it was satisfied that the interests of the debtor, its creditors, and other stakeholders were sufficiently protected by the composition plan (as required by Article 22 of the Singapore Model Law), the SICC ruled that the PKPU proceeding should be recognized as a foreign main proceeding under the Singapore Model Law, and that the order confirming the composition plan should be recognized and enforced in Singapore. However, because the release in the composition plan of non-debtor Garuda France might have an impact on the issues arising in the Singapore arbitration proceedings and "were more appropriately dealt with" in those proceedings, the court held that the arbitrations involving Greylag and Garuda France should not be prejudiced by recognition of the PKPU proceeding or enforcement of the order approving the composition plan in Singapore. As such, it ordered a carve-out in respect of such recognition and enforcement. Id. at ¶ 161. The SICC also directed that the automatic stay triggered by recognition of the PKPU proceeding did not preclude Greylag from prosecuting claims in the arbitration against the debtor that were originally denied by the debtor's administrators in the PKPU proceeding because Indonesian law permits a creditor to pursue collection of a claim rejected in a PKPU proceeding in a foreign jurisdiction. Id. at ¶ 162. 


Singapore has made great strides during the last decade to establish itself as a go-to jurisdiction for the resolution of international commercial disputes. A major part of its efforts in that regard include the creation of the SICC in 2015 and the adoption of the Model Law in 2017.

The SICC's initial foray into cross-border bankruptcy recognition under the Singapore Model Law is notable for several reasons, particularly because the case before it was complex and nuanced. Key takeaways from the court's ruling include: 

  • Once the statutory requirements for recognition have been satisfied under the Singapore Model Law, recognition is mandatory, unless recognition or other relief sought in the petition are contrary to public policy.
  • The public policy exception to recognition under the Singapore Model law is "restrictively" construed, and a challenge based on the exception will succeed "only if the recognition and the grant of relief is contrary to the fundamental public policy of Singapore."
  • The Singapore Model Law "does not require a foreign proceeding to be concluded, or that all avenues of appeal and review must be exhausted in the foreign jurisdiction before an application for recognition of the foreign proceeding is brought."
  • Principles of comity will be adhered to whereby a light threshold should be imposed for recognition, although the court may impose appropriate conditions and carve-outs in the circumstances.
  • Under the Singapore Model Law, a court can recognize and enforce the terms of both a foreign insolvency proceeding and a plan of compromise or reorganization sanctioned by the foreign insolvency court.
  • A court should not refuse to recognize a foreign insolvency proceeding merely because the restructuring laws of the foreign court and the recognizing court differ. The appropriate inquiry is whether the treatment of stakeholders is fundamentally fair and provides creditors with substantive due process.

The SICC's analysis tracks much of the analysis that has been developed over the last 24 years in jurisdictions that have adopted the Model Law, including the United States (since 2005 in chapter 15 cases). This robust jurisprudence and the volume of cases filed under the Model Law is demonstrable evidence that cross-border restructurings and the successful coordination of such cases benefit from Model Law procedures as well as guidelines and procedures established under related Model Laws, which, by extension, will benefit the capital markets by providing consistency, reliability, and predictability to investors, creditors, and borrowers.

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