As always, we also thank the support of the ABI staff and the ABI Board of Directors, both of whom helped to facilitate and guide our work throughout the year.

This year especially, we express our huge thanks to Sam Gerdano, who concluded his role as ABI executive director last year and who has been instrumental in the success of our cross-border conferences. We happily welcome incoming Executive Director Amy Quackenboss, who has always been a vital resource for our committee.

Lastly, we want to let everyone know that 2020 will be Rafael Zahralddin’s last year serving as co-chair for this committee. He has served as Special Projects Leader, Education Director and Newsletter Editor for the committee in recent years. He has also served on the Advisory Committee for the Cross-Border Conference, for which he also acted as a moderator, speaker and author of CLE materials. We thank him for his dedicated service in all of these roles. We especially want to thank Rafael’s firm, Elliott Greenleaf, P.C., who has been a sponsor in various capacities for the committee during this time.

The structure of insolvency legislation in the United Arab Emirates (UAE) reflects this pattern of diversity in law change, with resulting differences in the operation of the laws: (1) The UAE has its overarching insolvency law; (2) the seven constituent emirates have varying ways of addressing insolvency, in many instances relying on the UAE federal insolvency law; and (3) the internationally oriented financial centers or economic zones of Dubai and Abu Dhabi (the Dubai International Financial Centre (DIFC) and Abu Dhabi Global Markets (ADGM)) have their own insolvency regimes, as well as their own independently functioning court systems for resolving problems that arise within the jurisdictional scope of those centers/zones. These systems were adopted at different times and reflect different styles and policies characteristic of the times of adoption. Until 2019, the DIFC’s insolvency law, dating back to 2003 and replaced in 2009, was older than the ADGM’s (which comes from regulations dated to 2015, with amendments through 2016). In 2016, the UAE modified its own federal insolvency law and regulations, bringing in some concepts of reorganization and rehabilitation.

One of the key concepts under the Model Law and chapter 15 is determining the proper location for a foreign main proceeding. Similar to the Model Law, chapter 15 recognizes foreign proceedings as foreign main proceedings if they are pending in the country where the debtor has its “center of main interests” (COMI). The Model Law does not define the term “COMI,” however, leaving courts to determine how to apply the term.

Courts and commentators have expressed different views regarding which date courts should use when determining COMI. As highlighted in a recent Singaporean case, there are three primary approaches: European courts use the date of the application to open insolvency proceedings; Australian courts use the date of the recognition application hearing; and U.S. courts generally use the filing date of the application for recognition.

The main cause of the airline’s mayhem was the price-sensitive market in India, competing low-cost carriers and rising fuel prices. The tough competition from the low-cost carriers reduced the airline’s marginal costs, which drove the fares down considerably, and the airline was not able to earn enough to cover its capital expenditures. This led to the airline ultimately leaving the market.

The National Company Law Appellate Tribunal (NCLAT) is a tribunal formed by the Central Government of India under Section 410 of the Companies Act, 2013 that hears appeals against the orders passed by the National Company Law Tribunal and by the Insolvency and Bankruptcy Board of India. In a recent order, the NCLAT allowed the administrator appointed by the Noord-Holland District Court, Netherlands (the “Dutch Administrator”) to attend the meetings of committee of creditors (the “CoC”) of Jet Airways. It’s a surprising and rather welcome step from NCLAT to recognize the jurisdiction of a foreign court and directing the Dutch Administrator to work in cooperation with the resolution professional (the “RP”) appointed by the National Company Law Tribunal, Mumbai bench (“NCLTM”), to achieve maximization of the value of Jet Airways’ assets.

Jet Airways defaulted in repaying its debts to lenders, and as of early January 2020, it has a total gross debt of more than INR 360 billion, which includes domestic and foreign lenders, employees and vendors. As a result, a consortium of lenders led by the State Bank of India (collectively, the “Indian Lenders”) initiated the corporate insolvency resolution process by filing the petition with NCLTM, which was admitted by NCLTM and appointed the RP to take over the management of Jet Airways. Simultaneously, the Bankruptcy Court of Netherlands, Noord Holland District Court in Netherlands (the “Dutch Court”) passed an order of insolvency of Jet Airways in response to a petition filed by two creditors of Jet Airways claiming outstanding dues of around INR 280 crores. The Dutch Court appointed the Dutch Administrator to seize the assets of Jet Airways located in Netherlands.