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Brooklyn Journal of Commercial & Financial Law

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In 1925, the British government sent a delegation to the Fifth Session of the Hague Conference on Private International Law. The Hague Conference had met sporadically since 1893,1 but this was the first time the British government sent a delegation to The Hague to discuss the possibility of a diplomatic convention to reach international agreement on uniform rules on what continental Europeans called “private international law” — matters of jurisdiction, applicable law and procedure. The British delegation held limited authority from the Home Office: it could participate only in deliberations on a possible convention on bankruptcy law, and then only along the instructions provided to it. Given these narrow directions, it is perhaps not surprising that the British delegation left the 1925 conference before it ended and without agreement on a bankruptcy convention. It is, however, surprising today to realize that conversations about conflicts of law rules in international bankruptcies have been going on for almost 90 years. It is even more surprising that the contours of that discussion contain lessons that remain timely. This Article reviews the history of the 1925 Hague Conference proceedings on bankruptcy. My goal is both to reveal this history and to consider it in light of more recent transnational instruments coordinating cross-border bankruptcy proceedings, including the EU Regulation, UNCITRAL’s Model Law on Cross-Border Insolvency, and current proposals pending before the UN’s Commission on International Trade Law to consider the drafting of an international instrument to address certain conflicts of law rules applicable in cross-border insolvency proceedings. The paper proceeds in four parts. Part I provides a brief history of the beginnings of the Hague Conference on Private International Law, including Britain’s reticence to participate in this Conference. Part II discusses several initiatives on the topic of international bankruptcy presented before and by the International Law Association (ILA), especially a paper presented at the ILA’s 1924 session by an influential British solicitor, E. Leslie Burgin. Burgin’s efforts are emphasized because he seemed to have succeeded in convincing His Majesty’s Government to attend the Hague Conference on the topic of international bankruptcy law. Part III details preparations for participation in the 1925 conference by Great Britain’s Board of Trade. Part IV considers the proceedings of this Hague Conference on bankruptcy. A final section reflects, with the passage of time, on important lessons learned in this experience, with emphasis on the importance of the form of uniform ruleson conflicts of law in this context.