1924 and today

History can sometimes provide a fresh perspective on current events. My years of observations at UNCITRAL led me to wonder about how working methods in this international organization compare to those of similar (some would say sister) organizations -- UNIDROIT and the Hague Conference on Private International Law. This research revealed references to work at the turn of the 20th century (1879, 1904, 1925) on an international convention on the treatment of cross-border bankruptcy cases. I was intrigued, but primary documents eluded me.

On a recent trip to London I was lucky to enough to score big in two different libraries: at the British National Archives in Kew Gardens I found 7 file folders from the British Board of Trade, circa 1924, describing preparations for participation at the Hague Conference's Fifth Session for deliberations on a draft insolvency convention; at the British Library I finally scored the long-sought records of the proceedings of these 1925 meetings at The Hague.  Nerd heaven!

In the BOT folders, carefully arranged in reverse chronological order and tied with silk ties, I found the complete records of Inspector General S.W. Hood, who had been urged by a London solicitor, Leslie Burgin, that Great Britain should attend the Hague Conference on Private International Law in 1925 for the first time to participate in their deliberations on a draft bankruptcy convention. In a thorough report first to the International Law Association in 1924 and next to the Board of Trade, Burgin presented both an economic and legal case for reform of choice of law rules in cross-border insolvency.  WWI had left Europe in economic turmoil, which meant that insolvencies were becoming more commonplace; trade had become increasingly global, argued Burgin, and so these insolvency cases held international implications.  And yet, while choice of law rules existed, they were unclear and applied unpredictably.

After study, the Board of Trade recommended that His Majesty send a delegation to The Hague but did not recommend participation in a convention of general application.  Instead, the Board committee recommended involvement in a treaty permitting cross-border recognition of trustees, and little more.

The records of the Hague Proceedings revealed that, true to instructions, the British delegation sought to direct conversation toward a limited treaty, one relating solely to recognition of cross-border insolvency cases.  When deliberations got too universal for the British delegation, they submitted a statement (in English) of their views and took the next boat to London.  German and Spanish delegations submitted their own written statements to the general proceedings; surprisingly, they wrote to support “the grand principal of the unity and universality of bankruptcy” (le grand principe de l’unité et de l’universalité de la faillite).  Mind blowing, considering the territorial approach to insolvency cases taken by both these countries at the time.

None of this was what I expected to find, and yet nearly all of these deliberations were weirdly similar to conversations at a recent UNCITRAL colloquium/working group session on the topic of choice of law (and other things).  Proof that there are no new ideas? That international law reform might span a century of work? And that history is never old.