The risk of competing insolvency proceedings highlights the need for Latin American countries to adopt the UNCITRAL Model Law on cross-border insolvency

In today’s global marketplace, many Latin American companies conduct a significant portion of their business abroad and, consequently, have a large number of foreign investors and jurisdictionally diverse creditor constituencies. Moreover, in some instances, local laws restrict the ability of Latin American companies to issue dollar-denominated debt. These factors have resulted in more and more Latin American-operated companies having a key subsidiary or affiliate — many times the organization’s financing arm — located and/or registered in a country outside of Latin America. This dynamic, coupled with an expanding universe of sophisticated, knowledgeable, well-funded and proactive investors, has led to an increase in the filing of “competing” insolvency proceedings involving Latin American companies. Recent mega-cases from Brazil, including OAS and Oi, highlight this trend.  In those cases, the debtors commenced voluntarily insolvency proceedings in Brazil, but creditors commenced competing insolvency proceedings in other jurisdictions. Competing cases can lead to increased uncertainty, delay and cost, all of which could ultimately jeopardize a debtor’s prospects of successfully reorganizing and creditors’ prospects of repayment.

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