69371 WORKING GROUP SESSION ORKING ROUP ESSION LAC 2006 OF THE OF THE GLOBAL JUDGES FORUM GLOBAL JUDGES FORUM 14--16 JUNE 2006 – BUENOS AIIRES,, ARGENTIINA 14 16 JUNE 2006 – BUENOS AIRES ARGENTINA UNE UENOS RES RGENT NA SUMMARY REPORT Enhanciing Courrtt Capaciitty iin Commerrciiall and Insollvency Cases Enhanc ng Cou Capac y n Comme c a and Inso vency Cases Liimiitts off Dellegattiion orr Substtiittuttiion off JJudiiciiall Functtiions tto Non--JJudiiciiall Enttiittiies L m s o De ega on o Subs u on o ud c a Func ons o Non ud c a En es Impactt off Glloballiizattiion on tthe Domesttiic Judiiciiall Prrocess Impac o G oba za on on he Domes c Jud c a P ocess JJudiiciiall Cooperrattiion and Courrtt-to--Court Communiicattiion iin Crross-Borrderr ud c a Coope a on and Cou -to Court Commun ca on n C oss- Bo de Insollvenciies Inso venc es Orrganiized by O gan zed by The Worrlld Bank Legall Viice Prresiidency The Wo d Bank Lega V ce P es dency In Cooperrattiion wiitth In Coope a on w h Intterrnattiionall Associiattiion off Judges In e na ona Assoc a on o Judges Lattiin Amerriican Federrattiion off tthe Judiiciiarry La n Ame can Fede a on o he Jud c a y Eurropean Associiattiion off Judges Eu opean Assoc a on o Judges Arrgenttiine Federrattiion off Magiisttrrattes A gen ne Fede a on o Mag s a es Arrgenttiine Associiattiion off Federrall Judges A gen ne Assoc a on o Fede a Judges The World Bank’s Legal Vice Presidency organized the 2006 Working Group Session of the Global Judges Forum, in cooperation with the International Association of Judges, the Latin American Federation of the Judiciary, the European Association of Judges, the Argentine Federation of Magistrates, and the Argentine Association of Federal Judges. Over fifty participants from 31 different Latin American, Caribbean, North American and European countries came together in the Buenos Aires Stock Exchange Building in order to discuss the following topics: • Mediation and Arbitration in Commercial/Insolvency Cases. • Streamlining Commercial Proceedings using Non-Judicial Entities and Processes. • Delegation/Substitution in Enforcement Proceedings. • Judicial Cooperation and Court-to-Court-Communication in Cross-Border Insolvency Proceedings. The first three topics formed a unit as they all dealt explicitly with delegation of judicial work to non-judicial entities. The first topic dealt with possible alternative entities, such as mediators and arbitrators while the following two topics investigate which aspects of court and enforcement procedures respectively could be subjected to such delegation and substitution. The fourth topic, in contrast, touched on a completely different subject, the co- operation between courts, which, as a consequence of globalization, is of growing importance for the judiciary in the context of international insolvency law. Christina Biebesheimer, Chief Counsel of the World Bank’s Justice Reform Practice Group, delivered the opening remarks. Elena Highton de Nolasco, Vice President of the Argentine Supreme Court of Justice, Ricardo Luis Lorenzetti, Minister of the same Court, and Adolfo Rouillon, Senior Counsel of the World Bank’s Finance, Private Sector & Infrastructure Group and former President of the Court of Appeals in Rosario, Argentina also addressed welcoming remarks to the participants, who followed very attentively the presentations during the two conference days and entered into lively discussions. Combining presentations and debates, the forum aimed to provide not only a forum to share experiences but also a platform to contribute to assessing solutions to existing challenges, as well as improving the processes of institutional evaluation and judicial reform. This Summary Report has been prepared by Jordi Agusti-Panareda, World Bank Legal Associate. The present text does not constitute a comprehensive report or thorough analysis of the forum’s sessions, interventions and debates, but rather a sketch in broad strokes of some highlights from its discussions and presentations. 1. MEDIATION AND ARBITRATION IN COMMERCIAL/INSOLVENCY CASES THE EXPERIENCE OF US COMMERCIAL COURTS WITH ALTERNATIVE DISPUTE RESOLUTION — MEDIATION IN INSOLVENCY PROCEEDINGS Speaker: Judge Barry Russell (United States Bankruptcy Court, Central District of California) Judge Russell delivered the first presentation on the experience of United States Commercial Courts with Alternative Dispute Resolution (ADR), with particular focus on the use of mediation in insolvency proceedings. US Federal law requires courts to consider the use of ADR and about 50 US Bankruptcy Courts have an ADR program, in most cases providing for mediation, a process which has been strongly encouraged by the two last Attorney Generals. Mediation has also grown stronger in the curricula of US law schools and a large number of organizations currently work on, or offer services in, the field of ADR. Based on research of Bankruptcy courts that used mediation, Judge Russell explored the application of this process by addressing several themes: The reasons why judges should care about mediation: saving time and money, increasing people’s satisfaction with the courts, increasing compliance with resolutions and “enlarging the pie� so as to account for the complexity of the various issues in a particular dispute. The question of enforceability: noting how in the US, parties can bring a mediated agreement to the judge to be signed by her or him, and thus be given the status of a court order. The need to create a mediation culture: stressing the importance of educating and gaining the support of judges, as well as other key actors, for example lawyers. In this vein, the speaker outlined his court’s outreach and consultation process, addressing key matters, such as whether mediation should be court-ordered, whether mediation services should be charged, what should be the qualifications and authority of the mediators and the parties, how to treat confidentiality or ensure quality, etc. The process of creating a mediation program: outlining the decisions that led to the the establishment of such a program in his court—in which the judges and parties can request the process, participants are not charged, at least for the first session, mediation is carried out by trained mediators who volunteer their services and time, a computerized record is kept, and survey user feedback gathered, for statistical and quality monitoring purposes. REFORM OF CHILE’S BANKRUPTCY LAW. MEDIATION AND ARBITRATION IN INSOLVENCY PROCEEDINGS Speaker: Justice Rosa María Maggi Ducommun (Court of Appeals, Santiago, Chile) Justice Maggi presented the reform of Chile’s bankruptcy law, which introduced mediation and arbitration in insolvency proceedings through recent legislative change. Its introduction was preceded by several legal and economical studies however its implementation still lacks evaluation results. Justice Maggi first noted that a few years ago, it seemed impossible to anticipate the usage of ADR in bankruptcy, due to the belief that the debtor had to be subject to judicial surveillance and that an out of court process could not lead to a satisfactory outcome for the creditors. She highlighted two processes that paved the way for change: the current openness towards a “justice of settlements� that promotes mediation and arbitration in several legal fields, and the evolution in the insolvency field from the idea of mere liquidation to the notion of corporate restructuring, i.e. aiming regulations to not only ensure the payment of debts but also the continuity of viable corporations. Stemming from this change in perspective, and in order to facilitate determining the viability of corporations facing insolvency proceedings, the reform introduced a mediator, working under the title of expert facilitator, whose goal would be to allow the debtor to reach out to the creditors and to facilitate a potential credit renegotiation. Under this new regime, the debtor can petition the judge to appoint an expert facilitator, who would mediate with the creditors. The expert strives to create an opportunity for settlement and has 30 days to propose a preventive agreement before bankruptcy is declared. The speaker also examined the usage of arbitration in the insolvency and bankruptcy fields, outlining how in Chile the heavy backlog of cases, lead the decision makers first to consider the creation of specialized courts, but ultimately opting for arbitration proceedings with a focus on preventive judicial agreements, aiming towards reaching a satisfactory outcome, and liquidation, that minimize potential damages. The arbitrators can compel the parties to provide evidence in support of the facts, and need to elucidate the rationale for their decisions in making the awards. As her final remarks, Justice Maggi questioned past reluctance to promote alternative means of resolution in the fields of insolvency and bankruptcy noting that if these means could work in family law matters, they should be perfectly adequate for insolvency issues, where everything is negotiable and whose parties, business people, typically operate through agreements. DEBATE During the debate, discussions touched upon, among others, the following issues and arguments: Access to courts, as a fundamental human right, should not be withdrawn from the parties in the name of efficiency. A participant argued that while alternative processes in insolvency can be devised, and in many instances may entail incentives and disincentives, arbitration or mediation should not deprive a party of their right of access to a court. It was also noted that in certain disputes there might be a legitimate interest in public resolution. The incentives of voluntary unpaid mediators. On this subject, the first speaker argued that the free of charge approach was aimed to foster the use of mediation, and that actors, such as lawyers, might have incentives to work as mediators for free—for example, getting involved with the court as problem solvers that hold certain control over the process, or gaining experience and reputation in order to develop a career as mediators. The judicialization of the mediation process, for example through court-based mediation or the enforcement of an agreement. A participant here questioned whether the relationship between mediation and the court processes leads to the delegation or the reform of the judicial system, a concern to which the first speaker replied that the outcome of mediation did not seem to entail delegation to him, but rather an agreement by the parties, which can be signed by the judge if the parties choose to do so. Approaches to the selection and designation of mediators, such as judicial designation, or party choice from an official pool. Similarly discussed were the profile (expertise in bankruptcy, economics, or law, for example) and certification of mediators and the qualifications required to practice. This field remains unregulated in the US, except for the requirements imposed by each court and the recognition of specific training institutions or programs. The discussions also referred to the mediation directive in European Union (EU), which has led to mediation certifications and registers in different countries, requiring mediators to have a minimum number of mediations per year to remain enrolled, publicly establishing fees, and providing for a complaint procedure for parties on the conduct of mediators. The issue of whether and to what extent mediators can provide advice—for example on the weaknesses of each party’s position. The need to develop systems that take into account the litigation and legal culture of a particular jurisdiction. A participant noted that due to contextual idiosyncrasies, a voluntary approach to mediation was of key importance to the success of a pilot project in his country, and how its success ratio was cut in half when the program was mainstreamed as a mandatory process. Concerns about the difficulties of introducing ADR processes for insolvency or bankruptcy matters in certain jurisdictions, due to issues like lack of facilities readily available to courts, lack of incentives for mediators to work for free, or public policy considerations, such as the publicity of proceedings, the determination of whether all creditors should be aware of an informal process affecting an insolvency case, or the protection of other public policy values that are oftentimes conceived as being foreign to mediation. One participant raised the question whether, as a result of a particular mediated process, certain parties affected by the insolvency might be ignored or impaired. Similarly, another participant noted that, in agreements that have a direct impact over other creditors, who should have an opportunity to resort to the courts, to have the fairness of settlements be scrutinized according to the law. The importance of obtaining the endorsement of legal and judicial reforms by legal players, such as lawyers, to ensure their success—for example, when promoting the usage of informal processes. The question of potential invalidation of voluntary settlements, ensuing out of court payments in the light of ulterior bankruptcy proceedings, which hinges on the technical terms of the insolvency legislation in each country. In order to tackle such challenge, a participant suggested the possibility of introducing legislation that declared mediated agreements, within a certain period of time, as preferential. Others shared existing provisions that deal with this problem, such as confirmation mechanisms. The need for volunteer mediators in consumer insolvencies, where the majority of parties cannot afford to pay a lawyer or a mediator. The issue of timing in resorting to mediation, tied to each country’s specific approach to and regulations on bankruptcy, and with several aspects to consider, such as the willingness to institute the proceeding soon or including all creditors. A participant here stressed the distinction between a mediation to facilitate a broader roadmap agreement, which, albeit interesting, is still very much a novelty, and mediation to resolve the particular credits, where safeguards lie in allowing creditors and judges to object. The need to develop ways in which to share knowledge and experiences with countries willing to promote ADR processes in the insolvency context, for example, bringing the mediation culture to the universities. Concerns about abuse of informal alternative processes by debtors for dilatory purposes or in achieving a reduction of the debt. The involvement of the public sector in ADR processes, which might amplify the question of ensuring that the parties to the process have adequate authority to settle. The scope of ADR processes as tools for corporate restructuring, and its interactions with existing regulations, such as the obligation of the corporation to declare bankruptcy. 2. STREAMLINING COMMERCIAL PROCEEDINGS USING NON-JUDICIAL ENTITIES AND PROCESSES THE ARGENTINE EXPERIENCE ON THE LIMITS TO THE DELEGATION AND SUBSTITUTION OF JUDICIAL FUNCTIONS Speaker: Justice Aída Kemelmajer de Carlucci (Supreme Court of Justice, Mendoza, Argentina) The second session focused on the topic of streamlining commercial proceedings using non- judicial entities and processes. Justice Kemelmajer de Carlucci dealt with the Argentine experience on the limits of delegation and substitution of judicial functions. Against the backdrop of the high costs and long delays attributed to judicial proceedings, the presentation dealt with the issue of the compatibility between the right to defense and the delegation/substitution of court processes, i.e. the constitutional limits to judicial delegation. Noting that judicial defense can be structured as anteceding, concurring or subsequent, the speaker analyzed different instances of full and partial judicial delegation in Argentina. Alluding to a historical-ideological pendulum between privatization, judicialization and delegation in the insolvency field, she structured the presentation around several questions. The first question addressed whether a debate on delegation or substitution should be opened. It was answered positively, stressing the need to address current process delays in the insolvency and bankruptcy fields. The second explored the possibility of out-of-court enforcement of secured or unsecured credits. It led to the assertion that courts can be avoided for secured credits when the law provides for it. The third and broader question, on whether judicial intervention could still be limited when required, was answered affirmatively in relation to the Argentine context. In its development the speaker noted the existence of fast track proceedings with limited defenses. The fourth question examined the structuring of balanced payment mechanisms and similarly led to affirm its viability in Argentina, albeit limited to credits secured through in rem guarantees. In spite of these affirmative answers, the speaker concluded by drawing several caveats to her analysis. She noted how local usus fori can render void the best regulations, and argued in favor of recovering the basic values of judicial proceedings: precision in determining and characterizing the facts and the law, efficiency in employing resources and minimizing costs and time, impartiality and good faith of the parties. ELECTRONIC CASE FILING Speaker: Judge Charles G. Case, II (United States Bankruptcy Court, Arizona) The presentation by Judge Case revolved around the topic of electronic case filing. Providing an illustrated walk through an electronic procedure pioneered in 1997, the presenter showed how his Arizona bankruptcy court processes cases in a paperless fashion through a web- based interface. The process allows universal access to the public, with enhanced interactive access for the parties, court staff and judges. Presenting it as a system with few entry costs and characterizing it as a not very expensive program, the presenter argued how it provides both security and full availability and access, for example allowing parties to check the status at any time or judges to sign an order wherever they are. Court personnel and lawyers have their own passwords, allowing them to sign electronically. Through a user friendly interface creditors can have access to a wide range of information about the cases. The system also allows parties to prepare and upload a draft order, which the judge then can review and accept or send back with changes. The electronic nature of the documents greatly facilitates and speeds up communications and processing, allowing the judge, for instance, to sign orders in large batches. The presenter illustrated the electronic process, for example, how motions are submitted or how orders are created, reviewed and signed. DEBATE During the debate, interventions touched upon, among others, the following issues and arguments: The importance of taking into account the needs of courts and stakeholders in developing electronic or integrated systems. The idiosyncrasies of different country systems and related debates and experiences on judicial delegation, for example, appertaining to whether courts have absolute ultimate responsibilities that cannot be delegated, the official promotion of alternative mechanisms, or the need to share lessons and expectations. The role of external figures, like insolvency practitioners in the UK system, which are independent and decide on a variety of issues, such as what creditors are admitted, but do not preclude the existence of a right of appeal to the judge. The relationship and coexistence between paper and electronic supports in the processing of court documents. The impact of the regulations and legal culture of country systems in the development of automated electronic systems, such as the assumptions on where lies the possession of or access to court documents, for example, in the judges or the broader public, or the requirements for electronic signatures, which pointed to the need of tailoring systems and technicalities to the specificities of each legal system. The economic, resource and staff implications and repercussions of electronic filing systems. Here the second speaker noted that the system in place in the US has not reduced resources or saved money to the extent that had been expected, explaining how changes are not immediate and entail a conversion of the staff structure. The questions of what roles cannot be subject to delegation/substitution, and to whom should certain judicial and non-judicial functions be delegated—noting the existence of different alternatives, such as deputies within the courts, court staff, out of court staff or private entities. The second speaker noted that their conclusion had been that judicial functions can only be delegated to judge deputies and court staff, while non judicial functions can be delegated to other entities. Participants similarly stressed the need for judges to assess what is and what is not essential in the judicial function and thus what cannot be, or conversely what might be, delegated. In this vein, the first speaker noted that juris dictio—to say the law—is what judges cannot delegate and that whatever lies beyond decision-making can be externalized. The suitability of the expression delegation, or alternative labels—such as recommendation subject to review by an officer of the court. It was argued that delegation might be a problematic term—some participants thus noting that in their systems the power to make judicial decisions is never fully delegated. The possibility of developing decision-making guidelines and posting them on the internet, together with their impact on predictability, settlement and therefore court caseload. The question of whether the use of electronic interfaces entails innovation. The first speaker here considered that their electronic case filing system entailed innovation and changes in the processing of cases, for example, participation of lawyers in structuring the calendar for hearings. 3. DELEGATION/SUBSTITUTION IN ENFORCEMENT PROCEEDINGS THE PORTUGUESE PRIVATE BAILIFFS SYSTEM Speaker: Antonio da Cunha (Presidente, Camara dos Solicitadores) The third session examined the area of delegation and substitution in enforcement proceedings. Mr. Da Cunha provided an overview of the Portuguese private bailiffs system, a new model inspired by, yet different from, the French huissiers de justice. The Portuguese model before 2003 vested with the power execution in the courts. The system faced several problems: the creditors were responsible for the successful enforcement, an insufficient number of judicial officers, the absence of specialized courts for the executive process and the concentration of claims in Lisbon and Oporto. Throughout the years this led to great backlogs and a lack of response capacity. Following comparative studies of European systems, the Portuguese government took inspiration in the French huissier model, realizing that its Constitution allowed for certain acts of execution to be carried out not by judges but instead by a group of professionals, affiliated to a bar or chambers, and with their own deontological norms. The Portuguese solicitadores or private bailiffs were created. Through a reform of the civil procedure, the function of execution was attributed to the solicitadores de execução, albeit subject to the control of courts, which are the ones that first receive the cases. Functionally dependent on the judge of the case, the solicitador exerts functions of an execution agent, as well as other functions attributed by the law. The speaker noted how the model continues to give the creditor an active role in conducting the execution but entails a mentality change for legal actors, such as lawyers and judges, whose achievement can oftentimes be a challenge. The executive powers are now distributed between the execution agent—who conducts the execution proceeding, the service of process notice and publications and the seizure and sale of assets—and the judge—which ultimately controls the executive process and the activities of the solicitador, and maintains the role of deciding on declarative incidents such as opposition to seizure and execution. Although the practice of these new professionals faces certain hurdles yet to be solved— for example, lack of access to databases that the system assumed, bureaucracy or computing communications challenges—the implementation of the new system, albeit slow, is being successful overall. Its introduction has reduced the existing backlog, costs and the length of the processes. The number of solicitadores is still small, due to strict qualification requirements, and incompatible regimes, but according to the speaker, there will probably be no need for more solicitadores in the near future as their ratio is close to that of execution agents in other countries. The speaker also argued that the use of technological means should grow as a result of the reform, and concluded that its implementation needs to be finalized to achieve the full transposition of the new dispositions into reality. DEBATE During the debate, interventions touched upon, among others, the following issues and arguments: The widespread challenge in many jurisdictions to make execution more effective, for example, by delegating enforcement powers, and the need to consider what factors make execution more effective. The question of whether creating a specialized jurisdiction for execution can generate duality or even multiplicity and tensions between jurisdictional trends, which might in turn affect the production of precedents. Different avenues to simplify executions, such as execution secretariats, electronic notifications, or processes like the juicio monitorio (fast track procedure for debt collection) and attempts at their implementation in different countries. The need for judicial activism when solutions to improve effectiveness are not provided by the legislatures. The need to delegate non judicial (i.e. non decision-making) tasks, like administrative functions such as communications. The fee system, accreditation, disciplinary process and professional responsibility regimes for the Portuguese solicitadores, as well as other details of the Portuguese system. The need for or convenience of execution agents embracing technical developments and using electronic means to carry out their functions, such as serving, filing documents, or conducting communications. This led to discussion on the challenges and structuring of electronic systems, for example, the design of protocols for electronic serving. The relevance of speed in the execution processes, and its impact on the rule of law—for example, how delays can lead to troubling privatization processes, such as the use of mafias to collect debts. Similarly, and in the realm of policy implications, discussion focused on the corrosive effect to the public perception of the judiciary when court orders are not enforced. As for the economic effects, the repercussions of the availability or cost of credit were also noted. The importance of distinguishing between enforcement/execution of secured credit and the enforcement/execution of unsecured credit, the former allowing for the suppression of court involvement, as it happens in the US in relation to personal movable property, based on the notion that there has been a voluntary granting of the involved interest. The issues/questions to be tackled by execution reforms—for example, what are we doing in enforcement proceedings? Why? What are the necessary elements and what are mere formalities? Can we simplify without sacrificing legal safeguards? Can or should we delegate? The conclusion of those questions, in Norway, for instance, was that a large part of proceedings was not judicial in nature and could thus be delegated, that the delegation was a balance between efficiency and legal safeguards, and that the balance toward efficiency could be solved without sacrificing legal protection for the parties, this leading to some functions being delegated to court staff and execution to private agencies. The difficulties accessing credit for medium and small sized companies, which oftentimes lack access due to high costs, linked to legal risks and the inefficiency of credit enforcement, serious hurdles that require thorough and thoughtful intervention. The discussion stressed the importance of enforcement effectiveness and efficiency, as well as the initiatives to tackle these challenges, and the sharing of experiences and findings to promote both access to credit and development. 4. JUDICIAL COOPERATION AND COURT-TO-COURT COMMUNICATION IN CROSS- BORDER INSOLVENCY PROCEEDINGS JUDICIAL COOPERATION AND COMMUNICATION IN INSOLVENCY PROCEEDINGS Speaker: Justice James Farley (Retired from the Superior Court of Justice of Ontario, Canada) The final session addressed a distinct thematic block and explored judicial cooperation and court-to-court communication in cross-border insolvency proceedings. Justice Farley drew on his experience in the corporate world, now as a board director of a transnational yeast company, to address the importance of cross-border issues and cooperation in insolvency proceedings taking place against the backdrop of a globalized world economy. Justice Farley stressed the importance of reorganizing companies faced with insolvency processes, due to the risk of value destruction in a pure liquidation of hard assets, especially since in many corporations the soft assets, for examples, an organized and trained work force, might be the most valuable ones. He noted how coordination between courts becomes essential in insolvency cases involving more than one jurisdiction to provide a chance for reorganization or the adequate sale of the company. With these admonitions, the speaker moved to analyze court-to-court cooperation systems, noting the important limitations and bureaucratic burdens of letters rogatory. Acknowledging the traditionalist nature of courts, and the need to respect local regulations, he argued for the need to think about how to move from archaic methods to the usage of technology that has been long available to society, while stressing the importance of being cautious and not taking any negative steps on the way. The speaker illustrated the importance of cooperation for the coordination of insolvency proceedings in different jurisdictions and stated that the best way to ensure the coordination is to have an effective way of communication, which should be efficient and provide true and accurate information. He referred to pioneer instances of innovative communication, where courts appoint an examiner, as an impartial officer of the court, who acts as a communication link that transmits accurate and faithful information to their counterpart. The speaker also referred to the Concordat project of the International Bar Association, aimed at working with the commonalities of the insolvency systems in different and differing legal systems. He noted how the project came up with a set of principles through a program that gathered representatives, from both common and civil law jurisdictions, representing twenty-five countries, including lawyers, academics and judges, and he stressed the importance of having the judges buy into such processes to achieve success, and of avoiding any attempt at a common law takeover. The Concordat set up around fifty protocols of real cases, which can be submitted to the local court for suitability assessment and approval, and which never entail a surrender of jurisdiction or sovereignty. The speaker noted how the protocols provide a more effective way to operate than letters rogatory, establishing procedures and ensuring that courts will be mindful of each other. The presentation stressed the value of cross- border protocols and alluded to existing instances, such as the protocols between Canada and the US, or between the US and Israel and the US and Switzerland, as well as the speaker’s own experience in protocol setup. In this vein, he noted how in Canada the establishment of protocols has become part of the legal culture, so that their institution, discussion and adjustment, constitute an expected routine. As for communications between courts, the speaker referred to the guidelines of the American Law Institute’s Principles of Co-operation in NAFTA Cross-Border Cases, inviting participants to take a look at them and to adjust them to the particular requirements and circumstances of each jurisdiction. The presentation also touched upon the UNCITRAL model law and the requirement placed upon courts to cooperate with those from other jurisdictions, whether or not these have adopted the model law. Such approach, noted the speaker, should eliminate the reluctance of jurisdictions that feel they lack the authority to communicate. However, he noted that the process will not be effortless and that actors have to be comfortable with it, thus insisting on the leitmotif of taking small rather than giant steps. Justice Farley summarized the Canadian experience on court-to-court cooperation and noted possible ways in which to structure communications, such as having joint hearings through video conferences at the start of the proceeding, aimed to ensure that all jurisdictions can both hear and challenge. He concluded that there are still many difficulties to be overcome—such as differences in legal systems, language barriers, or time zones—but that communication experiences have worked successfully and contributed to the effective redeployment of the companies’ assets. 1 1 Most of the materials referred to in this presentation and other related resources can be found in the International Insolvency Institute website: http://www.iiiglobal.org COURT-TO-COURT COMMUNICATIONS IN THE EUROPEAN CONTEXT Speaker: Christoph Paulus (Humboldt University, Berlin, Germany) Acknowledging how little communication takes place between tribunals, the second speaker—Professor Paulus began noting existing differences between common law and civil law countries. He argued how divergences in the role attributed to judges in relation to the law in these two traditions can lead to disparities that affects the court-to-court communication dynamics: while in civil law countries the rule of thumb is that all that is not explicitly allowed in the law is forbidden, the opposite assumption would typically apply to common law jurisdictions. Such reality impacts the interpretation of the European Insolvency Regulation, specifically article 31, 2 which sets an obligation to work together and share information, but only refers to the administrators, and fails to mention the courts dealing with the cases. This silence leads most commentators to consider that there is an implicit prohibition for judges to communicate on the basis of the Regulation. Professor Paulus thus illustrated how tradition can act as an obstacle, although at the same time he defended an enabling interpretation, and noted that a new generation of judges in Europe seems to be more willing to reach out to other courts and that in the current landscape court-to-court communication, also in other jurisdictions, ultimately depends on the individual judge. Finally, Professor Paulus alluded to the existence of many different official languages in Europe as an additional hurdle for court-to-court communication. To overcome such barrier he hinted at the possibility of judges appointing a person of their trust that would be knowledgeable of all the relevant official languages. DEBATE During the debate, interventions touched upon, among others, the following issues and arguments: Difficulties and limitations of formal legal means of court-to-court communication and the need to improve them. Individual experiences on successful court-to-court communications, shared by different participants, often noting creative approaches to cross-border judicial cooperation, focusing on insolvency cases. Examples included usage of official gazettes, reliance on informal means beyond regulations or protocols, informal notices to the other court regarding the submission of a formal request, or the creation of a department of international collaboration within a court. Instances where article 31 of the European Regulation has been interpreted as providing authorization for judges to communicate, as well as the need for High Courts to endorse such interpretation. Practical difficulties in structuring cross-border court-to-court communications, such as where/to whom translation costs should be attributed—for example, the court or debtor. 2Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings. OJ L 160, 30.6.2000, p. 0001–0018. Safeguards in conducting court-to-court communications to ensure a true and accurate communication—for example, in conferences calls: notifying all the parties, transcribing the conference call and authorizing all the parties to listen. The impact of differing legal systems in considering court-to-court communications—for example, between North-American and European jurisdictions. The need for judicial creativity in approaching cross-border court-to-court communications, so that courts deliver appropriately their public functions and find adequate solutions for the parties. Similarly, the need to interpret silence in the law as entailing permission instead of prohibition, and to resort to broader constitutional and legal mandates, or to the need to administer justice, as grounds for judicial adaptation to the communication requirements of contemporary insolvency cases. The availability of affordable technological means so as to structure cross-border communications. The need to take into account and respect the public interests involved in insolvency proceedings. The existence of cooperation treaties, as well their meager usage, advocating for an increased reliance on them. Proposal for the World Bank to host a website to gather, discuss and share cooperation norms, resources and protocols. It was noted that the Bank already provides an online Global Insolvency Law Database (http://www.worldbank.org/gild), which is in the process of being updated and improved. Participants were invited to send their information and experiences on the matter, so that the World Bank and other organizations could disseminate it through the appropriate channels. Reference was also made to the websites of other international organizations such as UNCITRAL (http://www.uncitral.org), INSOL International (http://www.insol.org) and the International Insolvency Institute (http://www.iiiglobal.org).