(2023) Sgca 32

IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE
[2023] SGCA 32
Court of Appeal / Civil Appeal No 23 of 2022
Between
(1) Ascentra Holdings, Inc (in

official liquidation)
(2) Chua Suk Lin Ivy
(3) Graham Robinson
… Appellants
And
SPGK Pte Ltd

… Respondent
In the matter of Originating Summons No 16 of 2022
Between
(1) Ascentra Holdings, Inc (In

Official Liquidation)
(2) Graham Robinson
(3) Chua Suk Lin Ivy
… Applicants
And
SPGK Pte Ltd

… Non-party
JUDGMENT
[Insolvency Law — Cross-border insolvency — Recognition of foreign
insolvency proceedings — Recognition of foreign solvent liquidation
proceedings]
This judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports.
Ascentra Holdings, Inc (in official liquidation) and others

v
SPGK Pte Ltd
[2023] SGCA 32
Court of Appeal — Civil Appeal No 23 of 2022

Sundaresh Menon CJ, Steven Chong JCA and Belinda Ang Saw Ean JCA
3 August 2023
18 October 2023 Judgment reserved.
Sundaresh Menon CJ (delivering the judgment of the court):
Introduction
1 This appeal arises from the decision of a High Court judge (the “Judge”)
in HC/OS 16/2022 (“OS 16”), which considered whether a voluntary liquidation
qualified as a “foreign proceeding” within the meaning of Art 2(h) of the Third
Schedule to the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev
Ed) (the “IRDA”). The Third Schedule of the IRDA sets out Singapore’s
adapted enactment of the Model Law on Cross-Border Insolvency, that was
developed by the United Nations Commission on International Trade Law (the
“UNCITRAL Model Law”). For convenience, we refer to Singapore’s
adaptation of the UNCITRAL Model Law as the “SG Model Law”.
2 The present appeal raises the important question of whether the SG

Model Law encompasses within its ambit foreign insolvency, restructuring or
Ascentra Holdings, Inc v SPGK Pte Ltd [2023] SGCA 32
liquidation proceedings concerning solvent companies. This question must be

determined having regard to a range of considerations, including: (a) any
modifications which Parliament made to the UNCITRAL Model Law when
enacting it as the SG Model Law, and Parliament’s intent in making any such
modifications; (b) the approaches adopted by courts in other jurisdictions when
interpreting the UNCITRAL Model Law or the corresponding provisions in
those jurisdictions; and (c) the broader practical implications that would follow
if we were to decide that proceedings involving solvent companies do fall within
the scope of the SG Model Law.
Facts
The parties
3 We begin by recounting the facts. The first appellant is Ascentra

Holdings, Inc (in official liquidation) (“Ascentra”). Prior to its liquidation,
Ascentra was in the business of selling health and beauty products as well as
computer communications software in Hong Kong, Taiwan and Singapore (Re
Ascentra Holdings, Inc (in official liquidation) and others (SPGK Pte Ltd, non-
party) [2023] SGHC 82 (“GD”) at [5]).
4 The second and third appellants are Ms Chua Suk Lin Ivy (“Ms Chua”)
and Mr Graham Robinson (“Mr Robinson”) respectively. They are the joint
official liquidators of Ascentra appointed by the Grand Court of the Cayman
Islands (the “Cayman Grand Court”) and we refer to them collectively as the
“Liquidators” (GD at [6]).
5 The respondent is SPGK Pte Ltd, a company incorporated in Singapore,

and a wholly-owned subsidiary of Shang Peng Gao Ke, Inc (“SPGK Cayman”),
a company incorporated in the Cayman Islands. The appellants maintain that
2
Ascentra has potential claims against the respondent, SPGK Cayman as well as
another company incorporated in Singapore, Scuderia Bianco Pte Ltd
(“Scuderia Bianco”) (GD at [8]). In particular, it is alleged that SPGK Cayman
owes certain sums of money to Ascentra, some of which is held by the
respondent and Scuderia Bianco.
Background to the dispute
Ascentra’s liquidation
6 Ascentra’s ultimate beneficial shareholders are seven natural persons.

From sometime in 2018, a number of disputes arose between these shareholders
over the strategic direction of Ascentra’s business (GD at [10]–[11]). On 1 June
2021, Ascentra’s shareholders resolved to place it in voluntary liquidation and
to appoint Mr Robinson as the “voluntary liquidator”. On 2 June 2021, Ascentra
filed with the Cayman Islands Registrar of Companies, the documents that were
required under the Companies Act (2021 Revision) (Cayman Islands) (the
“Cayman Act”) to initiate its voluntary liquidation. Ascentra’s voluntary
liquidation is deemed to have commenced on 2 June 2021.
7 Pursuant to s 124(1) of the Cayman Act and O 15 r 1 of the Cayman

Islands Companies Winding Up Rules 2018 (the “Cayman CWR”), Ascentra’s
directors were required to file a declaration of solvency no later than 28 days
after the voluntary liquidation had commenced (that is, by 30 June 2021), failing
which the liquidator was required to apply to the Cayman Grand Court for an
order that the voluntary liquidation continue under the supervision of the court.
As Ascentra’s directors failed to file the declaration for undisclosed reasons,
Mr Robinson duly presented a petition to the Cayman Grand Court on 2 July
2021 for the liquidation to proceed under court supervision (GD at [12]–[13]).
3
8 On 17 September 2021, the Cayman Grand Court allowed

Mr Robinson’s petition and ordered, among other things, that:
(a) the liquidation of Ascentra be continued under the supervision

of the Cayman Grand Court pursuant to s 124 of the Cayman Act
(the “Supervision Order”); and
(b) Mr Robinson and Ms Chua be appointed as the joint official

liquidators of Ascentra.
Ascentra’s solvency
9 On 23 September 2021, the Liquidators filed a certificate in the Cayman

Grand Court as to Ascentra’s solvency in the following terms:
JOINT OFFICIAL LIQUIDATORS’ CERTIFICATE

Ascentra Holdings, Inc – In Official Liquidation (the
“Company”)
…
TAKE NOTICE that the Joint Official Liquidators hereby certify
that they have determined that the above-named Company
should be treated as solvent, for the purposes of section 110(4)
of the [Cayman Act] and [Cayman CWR] Orders 8 and 9.
AND FURTHER TAKE NOTICE that the Joint Official
Liquidators may change their determination from time to time
in the light of changes of relevant circumstances and/or their
assessment of the Company’s financial position.
[emphasis in original]
10 On 14 October 2021, in a letter addressed to Ascentra’s shareholders,

Mr Robinson similarly stated that the Liquidators had determined that Ascentra
was solvent.
4
The application in OS 16
11 On 6 January 2022, the appellants filed OS 16 pursuant to Art 15 of the

SG Model Law, seeking the following orders (GD at [15]):
(a) an order recognising Ascentra’s liquidation in the Cayman

Islands (“Ascentra’s Cayman Liquidation”) in Singapore and, by our
courts, as a “foreign main proceeding” within the meaning of Art 2(f) of
the SG Model Law;
(b) an order recognising the Liquidators as “foreign representatives”

of Ascentra within the meaning of Art 2(i) of the SG Model Law; and
(c) an order granting the Liquidators such powers in relation to

Ascentra’s property and assets “as are available to a liquidator under
Singapore insolvency law”.
It is evident that the Liquidators seek these powers with a view to pursuing
possible claims against the respondent and/or Scuderia Bianco. The
Liquidators’ application is resisted by the respondent (GD at [7]–[9]).
The decision below
12 The Judge considered that the only issue arising in OS 16 was whether
Ascentra’s Cayman Liquidation had its basis in a law relating to insolvency
within the meaning of Art 2(h) of the SG Model Law. The Judge held that
Art 2(h) of the SG Model Law had to be interpreted purposively pursuant to
s 9A of the Interpretation Act 1965 (2020 Rev Ed) (the “IA”), and applying the
approach to interpretation that was formulated in Tan Cheng Bock v Attorney-
General [2017] 2 SLR 850 (“Tan Cheng Bock”) at [37] (the “Purposive
Approach”). Specifically, the Judge took the view that the critical words within
5
Art 2(h) of the SG Model Law that he had to interpret were “law relating to
insolvency”: see GD at [24] and [28].
13 For convenience, we set out Art 2(h) of the SG Model Law here:
Article 2. Definitions
For the purposes of this Law —
…
(h) “foreign proceeding” means a collective judicial or
administrative proceeding in a foreign State, including an
interim proceeding, under a law relating to insolvency or
adjustment of debt in which proceeding the property and affairs
of the debtor are subject to control or supervision by a foreign
court, for the purpose of reorganisation or liquidation;
14 The Judge first separately interpreted the words “insolvency”, “law”

and “relating to” and proceeded in the following manner:
(a) The proper characterisation of a “foreign proceeding” under

Art 2(h) of the Model Law would take into account the law of the foreign
state. However, there was no material difference between the concept of
insolvency under Cayman law as opposed to Singapore law, given the
similarity in the language of s 125(2)(c) of the IRDA and its analogue,
s 93(c) of the Cayman Act. In any event, as the test for insolvency under
Cayman law had not been proved, it was presumed that the test for
insolvency under Cayman law was the same as that under Singapore
law. Accordingly, “insolvency” for the purposes of Art 2(h) of the SG
Model Law referred to a company’s inability to pay debts which had
already fallen due or which will fall due within the reasonably near
future, following the position set out by this court in Sun Electric Power
Pte Ltd v RCMA Asia Pte Ltd (formerly known as Tong Teik Pte Ltd)
[2021] 2 SLR 478 at [56], [65] and [66] (GD at [45]–[52]).
6
(b) For the purposes of Art 2(h) of the SG Model Law, “law”
encompassed both legislation and judge-made law, and would include
the Cayman Act (GD at [55]–[56]).
(c) The appellants’ submission that a law “relating to” insolvency is

simply one that is contained within a statute that deals generally with the
subject matter of insolvency was rejected. Such an approach
subordinated substance to form as any type of proceeding, no matter
how far removed that proceeding was from any connection to
insolvency, would fall within the scope of Art 2(h) of the SG Model Law
as long as it was commenced under a provision contained within a
statute that also dealt generally with insolvency (GD at [58]–[63]).
15 The Judge then considered the phrase “under a law relating to

insolvency” as a whole and held that the ordinary meaning of that phrase must
refer to a body of rules, whether statutory or judge-made, which governs a
company that is insolvent. This includes a company which apprehends
becoming unable to pay its debts as they fall due in the reasonably near future,
and therefore can be said to be in severe financial distress in the present (GD at
[64]). The Judge further observed that such an interpretation was consistent with
and confirmed by the underlying purpose of the UNCITRAL Model Law (GD
at [72]–[79]), as well as the preparatory records and documents relating to the
UNCITRAL Model Law such as: (a) various reports and papers of the
UNCITRAL Working Group on Insolvency Law (the “Working Group”);
(b) Cross-Border Insolvency: Guide to Enactment of the UNCITRAL Model
Law on Cross-Border Insolvency, 30th Sess, UN Doc A/CN.9/442 (1997) (the
“1997 Guide”); and (c) UNCITRAL Model Law on Cross-Border Insolvency
with Guide to Enactment and Interpretation, UN Sales No E.05.V.10 (2013)
(the “2013 Guide”) (GD at [81]–[99]).
7
16 As to the relevant case law, the Judge observed as follows:
(a) The Court of Appeal in United Securities Sdn Bhd (in

receivership and liquidation) and another v United Overseas Bank Ltd
[2021] 2 SLR 950 (“United Securities”) had implicitly affirmed in obiter
that the relevant foreign law under Art 2(h) of the SG Model Law must
be one which deals with or addresses insolvency or severe financial
distress (GD at [107]).
(b) Under the bankruptcy law of the United States (the “US”),
chiefly as reflected in Re Betcorp Limited (in liquidation) 400 BR 266
(Nevada US Bankruptcy Court, 2009) (“Re Betcorp”), the requirement
that a “foreign proceeding” be commenced under a law relating to
insolvency or the adjustment of debts does not require the company to
be either insolvent or contemplating the adjustment of debt (GD at
[124]). In the absence of direct evidence as to what Parliament intended,
it could not be said that by adopting the words “adjustment of debt” from
Chapter 15 of the Bankruptcy Code 11 USC (US) (1978) (the “US
Bankruptcy Code”) in Art 2(h) of the SG Model Law, Parliament
thereby intended to endorse the prevailing position under US bankruptcy
law (GD at [116]–[117]). Moreover, the US approach has been criticised
and should not be followed (GD at [132]–[142]). To the extent that the
position under Australian law is similar to US bankruptcy law, it should
likewise not be followed (GD at [153]–[159]).
(c) It was held in the decision of the High Court of England and
Wales in Re Sturgeon Central Asia Balanced Fund Ltd (in liquidation)
(No 2); Carter v Bailey and another (as foreign representatives of
Sturgeon Central Asia Balanced Fund Ltd) [2020] EWHC 123 (Ch)
8
(“Re Sturgeon”) that it would be contrary to the UNCITRAL Model

Law’s purpose and object to enlarge its scope by interpreting “foreign
proceeding” as including proceedings concerning solvent companies
and proceedings which may be expected to result in the payment of all
creditors in full and produce a surplus for members. Re Sturgeon is not
an outlier among English cases and should be followed in Singapore
(GD at [130] and [143]–[152]).
17 The Judge accordingly held that Ascentra’s Cayman Liquidation is not

a “foreign proceeding” within the meaning of Art 2(h) of the SG Model Law,
because the legislative “track” under which Ascentra’s liquidation was
commenced (that is, s 116(c), which provides that a company may be
voluntarily wound up if the company so resolves by special resolution, read with
s 124 of the Cayman Act) does not and cannot apply to a company that is
insolvent or in severe financial distress (GD at [161] and [165]). The Judge also
noted, in any event, that Ascentra is solvent.
The parties’ cases on appeal
The appellants’ case
18 In relation to the ordinary meaning of Art 2(h) of the SG Model Law,

the appellants argue that the Judge erred in the approach he took in interpreting
Art 2(h). By isolating the word “insolvency” and equating its meaning in Art
2(h) with that under s 125(2)(c) of the IRDA, he failed to appreciate that the
collection of words “law relating to insolvency or adjustment of debt” is framed
broadly and should therefore be interpreted broadly, such that while it would
include laws dealing with various issues that arise in a situation where a
company is or might be unable to pay its debts, it should not be confined to this.
9
19 Following from this, the appellants submit that the Judge took an unduly
narrow approach by focusing on the specific provisions of the Cayman Act
under which Ascentra’s Cayman Liquidation is being conducted (which we will
refer to, for convenience, as the “Narrow Approach”). Instead, the correct
inquiry is whether Part V of the Cayman Act on “Winding up of Companies and
Associations”, which contains those specific provisions as well as other
provisions that also cover insolvent companies, is, as a whole, a law relating to
insolvency (we refer to this as the “Broad Approach”). The appellants contend
that Part V of the Cayman Act (as a whole) is a law relating to insolvency
because it contains all the provisions necessary to wind up any company in the
Cayman Islands. The appellants thus submit that Ascentra’s Cayman
Liquidation, which was conducted pursuant to provisions contained in Part V of
the Cayman Act, falls within the ambit of Art 2(h) of the SG Model Law and
should therefore be recognised in Singapore as a foreign main proceeding.
20 Relatedly, the appellants submit that the SG Model Law and the
extrinsic materials do not impose any requirement for an applicant company to
be either insolvent or in severe financial distress for a proceeding involving that
company to be regarded as taking place under a “law relating to insolvency”
within the meaning of Art 2(h) of the SG Model Law. On the contrary, it is
evident from the preparatory material surrounding the UNCITRAL Model Law
that the words “law relating to insolvency” were not intended to confine the
application of the recognition regime to insolvent or severely financially
distressed companies. In oral submissions, counsel for the appellants, Mr Lee
Eng Beng SC (“Mr Lee”) also emphasised that the words “or adjustment of
debt” were adopted from the US Bankruptcy Code into Art 2(h) of the SG Model
Law and that this was done to allow the Singapore courts to recognise
proceedings akin to those under Chapter 11 of the US Bankruptcy Code (these
10
being corporate reorganisations) which are not limited to insolvent companies.

The appellants thus argue that the Judge erred in holding that Ascentra’s
Cayman Liquidation was not a “foreign proceeding” under Art 2(h) of the SG
Model Law on account of Ascentra’s apparent solvency.
21 The appellants further highlight that allowing the recognition of

proceedings involving solvent companies is consistent with the weight of the
authorities in the US, the United Kingdom (“UK”) (with the exception of Re
Sturgeon), Australia and New Zealand. In this regard, the appellants submit that
Re Sturgeon should not be followed because: (a) it is an outlier even among
English cases; (b) in any event, the English cases should be approached with
some caution due to differences between the legislative regimes in the UK and
Singapore; and (c) the position under US bankruptcy law should be preferred
given that Parliament had adopted the definition of “foreign proceeding” in
Art 2(h) of the SG Model Law from the US Bankruptcy Code and further,
because the preponderance of authorities in various jurisdictions have adopted
the US position.
22 In addition, the appellants also submit that the introduction of a

requirement of insolvency or severe financial distress would introduce
significant uncertainty and complexity into the recognition process and
undermine the purpose of the SG Model Law. This is said to follow from the
need that would then arise for our court to determine the precise requirements
as to insolvency under a foreign law. Mr Lee also suggested in his oral
submissions that the threshold for recognition should be a light one, given that
the court retains the power to make the order subject to suitable terms, thus
enabling the court to avoid any overreach.
11
The respondent’s case
23 The respondent, on the other hand, submits that Ascentra’s Cayman

Liquidation does not satisfy the definitional requirements in Art 2(h) of the SG
Model Law because it is not a proceeding under a law relating to insolvency,
and also because its purpose is not to secure the liquidation of the company
within the meaning of Art 2(h). To that end, counsel for the respondent,
Mr Balakrishnan Ashok Kumar (“Mr Kumar”), makes the following
submissions:
(a) A “foreign proceeding” under Art 2(h) refers only to proceedings

involving companies that are insolvent or in severe financial distress.
This is confirmed by the context and purpose underlying the SG Model
Law, as gleaned from the preamble of the SG Model Law as well as
extrinsic material such as the 1997 Guide, the 2013 Guide and the
corresponding working papers of the Working Group.
(b) The UNCITRAL Legislative Guide on Insolvency Law (2004)

(the “Legislative Guide”) confirms that the UNCITRAL Model Law
was intended to be limited to proceedings involving debtors that are
unable to meet their debts as they fall due and hence to be confined to
insolvent liquidations.
(c) Re Sturgeon was correctly decided by the UK court and is not an

outlier among English cases. Moreover, the principles that were applied
in Re Sturgeon are aligned with the preparatory material pertaining to
the UNCITRAL Model Law. The purported concerns over the
difficulties which the recognising court would allegedly face in
determining the financial status of the company concerned in the
relevant foreign proceeding are unfounded, because the recognising
12
court would typically rely on the foreign court’s assessment. In any case,
it would be obvious in most cases when a company is solvent.
(d) Re Betcorp should not be followed as it was wrongly decided

and has been criticised. Moreover, in many of the cases where Re
Betcorp was applied, the recognising court had nonetheless gone on to
consider whether the company involved in the relevant foreign
proceeding was insolvent or in financial distress. Indeed, even the US
courts have acknowledged that the insolvency or financial distress of a
company is a relevant consideration in determining whether recognition
should be granted.
(e) The approach suggested by the appellants would “open [the]

floodgates for recognition and assistance applications”, allow solvent
companies to take advantage of the SG Model Law even where its
purpose is not engaged, and create potentially absurd outcomes under
the SG Model Law.
24 Mr Kumar accordingly contends that Ascentra’s Cayman Liquidation,

which is being conducted under a “track for solvent companies” and involves a
company that has been solvent at all material times, cannot be regarded as a
“foreign proceeding” within the meaning of Art 2(h) of the SG Model Law, and
ought not to be recognised under the SG Model Law.
25 The respondent also submits in any event that the Singapore court does
not have the requisite jurisdiction to hear and determine the application for
recognition of Ascentra’s Cayman Liquidation pursuant to Art 4(2)(a)(ii) of the
SG Model Law, because Ascentra allegedly has no property in Singapore.
Finally, the respondent argues that even if Ascentra’s Cayman Liquidation was
13
to be recognised under the SG Model Law, the discretionary reliefs sought by

the appellants ought not be granted, or in any event, any order made by the court
should be circumscribed by the imposition of suitable conditions.
General principles and issues to be determined
26 To situate the specific issues arising for our consideration in the proper
context, it is apposite to first set out the relevant provisions of the SG Model
Law governing the recognition of foreign proceedings in Singapore.
27 Pursuant to Art 15(1) of the SG Model Law, a foreign representative

may apply to the court for recognition of the foreign proceeding in which the
foreign representative has been appointed. Article 17(1) of the SG Model Law
further stipulates circumstances in which a foreign proceeding must be
recognised:
Article 17. Decision to recognise a foreign proceeding

1. Subject to Article 6, a proceeding must be recognised if —
(a) it is a foreign proceeding within the meaning of
Article 2(h);
(b) the person or body applying for recognition is a foreign
representative within the meaning of Article 2(i);
(c) the application meets the requirements of Article 15(2)
and (3); and
(d) the application has been submitted to the Court
mentioned in Article 4.
28 We set out again Art 2(h) of the SG Model Law, which defines a
“foreign proceeding” in the following terms:
Article 2. Definitions
For the purposes of this Law —
…
14
(h) “foreign proceeding” means a collective judicial or

administrative proceeding in a foreign State, including an
adjustment of debt in which proceeding the property and affairs
court, for the purpose of reorganisation or liquidation;
29 It seems to us that Art 2(h) of the SG Model Law prescribes at least five
different and cumulative requirements for a proceeding to qualify as a “foreign
proceeding” (see also United Securities at [53]):
(a) First, that proceeding must be collective in nature.
(b) Second, that proceeding must be a judicial or administrative

proceeding in a foreign State.
(c) Third, that proceeding must be conducted under a law relating to

insolvency or adjustment of debt.
(d) Fourth, the property and affairs of the debtor company must be
subject to control or supervision by a foreign court in that proceeding.
(e) Fifth, that proceeding must be for the purpose of reorganisation

or liquidation.
While the Judge proceeded on the basis that only the third requirement was in
issue, the respondent takes the position before us that the first and fifth
requirements are also unsatisfied.
30 Finally, pursuant to Art 4(2)(a)(ii) of the SG Model Law, the General

Division of the High Court in Singapore will have jurisdiction to recognise
foreign proceedings under Art 17(1) if the company in question has property
situated in Singapore.
15
31 In the light of the parties’ submissions and the foregoing statutory

provisions, the following issues arise for our consideration:
(a) whether Ascentra’s Cayman Liquidation is being conducted

“under a law relating to insolvency or adjustment of debt” under
Art 2(h) of the SG Model Law;
(b) whether Ascentra’s Cayman Liquidation is a collective

proceeding under Art 2(h) of the SG Model Law;
(c) whether Ascentra’s Cayman Liquidation is being conducted “for

the purpose of liquidation or reorganisation” under Art 2(h) of
the SG Model Law; and
(d) whether the Singapore courts have jurisdiction to recognise

Ascentra’s Cayman Liquidation under Art 4(2)(a)(ii) of the SG
Model Law.
Whether Ascentra’s Cayman Liquidation is being conducted under a law

relating to insolvency or adjustment of debt
32 Before we set out our analysis on the first issue, we make two
preliminary observations on the approach taken by the Judge towards
interpreting Art 2(h) of the SG Model Law. First, we note that the Judge focused
on the interpretation of the words “under a law relating to insolvency”, and
largely excluded consideration of the words “adjustment of debt”. With respect,
we disagree with this approach. For reasons we explain in greater detail below,
we are satisfied that the inclusion of the words “or adjustment of debt” in
Art 2(h) sheds significant light on Parliament’s intention with regard to the
ambit of Art 2(h) at least in the context of the SG Model Law. The phrase “under
a law relating to insolvency or adjustment of debt” must therefore be interpreted
as a collective whole.
16
33 Second, both the Judge and the parties dealt, in considerable detail, with
the question of whether the Narrow Approach or Broad Approach should be
adopted in Singapore, that is to say whether the phrase “law relating to
insolvency” in Art 2(h) of the SG Model Law refers narrowly to the specific
provision(s) under which the foreign proceeding is conducted or more broadly
to the general statutory regime or part of the relevant legislation containing
those specific provision(s) in addition to others. The key difference between the
Narrow Approach and the Broad Approach is that with the latter, it will suffice
that the relevant proceeding is conducted under a law which contains provisions
relating to insolvency or adjustment of debt, even if the specific provisions
governing the relevant proceeding do not deal with insolvency or adjustment of
debt. Conversely, in the former, the specific provisions pursuant to which the
relevant proceeding is being conducted must relate to insolvency or adjustment
of debt.
34 In practical terms, the difference between the Broad Approach and the
Narrow Approach may be reduced to a more fundamental inquiry: whether the
Singapore Parliament intended that the words “under a law relating to
insolvency or adjustment of debt” in Art 2(h) of the SG Model Law should be
limited to laws that are applicable only to companies in insolvency or severe
financial distress. The point is significant because there is nothing in either the
UNCITRAL Model Law or the SG Model Law that expressly defines the
recognition regime by reference to the solvency status of the company in
question. Instead, the recognition regime is drafted in terms that accord
recognition to foreign proceedings by reference to a number of defining
characteristics of those proceedings, including the laws under which they are
being conducted. If the narrow view were adopted, the consequence would be
17
to confine the recognition regime in Singapore to insolvent and/or severely

financially distressed companies to the exclusion of solvent companies.
35 This seems somewhat counter-intuitive for two related reasons: first, if

that was the intention, it would have been far easier and clearer to achieve that
intention by making the solvency status of the company a necessary criterion;
and second, the choice of the words “law relating to” seems deliberate and their
purport is broad especially when seen in the light of the fact that in many
legislative regimes, including ours, and that which applies in the Cayman
Islands, laws relating to insolvency will frequently include or overlap with laws
relating to the dissolution of companies that may not be insolvent.
36 In that light, we first summarise our conclusion on this issue. In our

judgment, Art 2(h) of the SG Model Law should be interpreted broadly to
include within its ambit foreign proceedings concerning companies that are
neither insolvent nor in severe financial distress. We arrive at this conclusion
for a number of reasons:
(a) First, it is evident from the ordinary meaning of the relevant

provisions of the SG Model Law that there is no express requirement for
a company to be insolvent or in severe financial distress for a proceeding
concerning that company to be recognised as a foreign proceeding under
the SG Model Law. This is made demonstrably clear by the inclusion of
the words “or adjustment of debt” in Art 2(h) as well as the statutory
presumption of insolvency in Art 31. Significantly, there is no reference
at all in Art 2(h) to the solvency status of the company in question. In
our judgment, one is driven to the conclusion that the solvency status of
the company is not a relevant consideration both as a matter of the plain
18
interpretation of Art 2(h), as well as by the correct application of the

Purposive Approach.
(b) Second, even if we were to ignore the words “or adjustment of

debt” in Art 2(h) and assume that Parliament had adopted the
UNCITRAL Model Law in its original form, we are not satisfied that
the drafters of the UNCITRAL Model Law intended to exclude solvent
companies from the scope of the UNCITRAL Model Law for the
purposes of recognition. The Judge considered that the Broad Approach
would undermine the purpose of the UNCITRAL Model Law by
bringing proceedings concerning solvent companies within its scope,
and accordingly interpreted the phrase “under a law relating to
insolvency” as referring to a body of rules which governs a company
that is insolvent or in severe financial distress. On that basis, the Judge
held that Ascentra’s Cayman Liquidation was not a “foreign
proceeding” within the meaning of Art 2(h) because the specific
provisions under which it was commenced are not provisions that apply
to companies that are either insolvent or in severe financial distress.
Further, he considered that Ascentra is solvent, which was accepted by
the Liquidators (GD at [16]–[19] and [161]–[168]). On the last point,
although the appellants submitted in their Supplemental Case that
Ascentra was prima facie insolvent when the Cayman Grand Court
granted the Supervision Order, Mr Lee did not pursue this argument in
oral submissions. Even accepting that Ascentra is solvent, it is not at all
clear to us how extending the scope of Art 2(h) to cover proceedings
involving solvent companies would undermine the purpose of the SG
Model Law.
19
(c) Third, we are satisfied that Art 2(h) should be interpreted in a

way that is broadly harmonious with the approaches adopted in other
jurisdictions. The weight of the authorities in other jurisdictions favours
the interpretation we take, which would enable the recognition of
proceedings concerning solvent companies as foreign main proceedings.
(d) Fourth, the practical concerns that the respondent submits would
arise from allowing the recognition of proceedings concerning solvent
companies may be easily dealt with.
We elaborate on each of these points.
Whether the scope of Art 2(h) extends to solvent companies
The ordinary meaning of Art 2(h)
37 We begin our analysis with the ordinary meaning of Art 2(h) of the SG
Model Law. At the outset, we reiterate that there is nothing in the SG Model
Law, whether in Art 2(h) or elsewhere, which encompasses a specific
requirement that a particular proceeding must involve a company that is
insolvent or in severe financial distress to qualify as a “foreign proceeding”
within the meaning of Art 2(h). On the contrary, Art 2(h) has been drafted
broadly to refer to proceedings conducted under laws relating to insolvency or
adjustment of debt (as opposed to, for instance, proceedings conducted under
laws that are applicable only to companies that are insolvent or in severe
financial distress).
38 Further, in considering the terms of Art 2(h) of the SG Model Law, it is

relevant to consider the UNCITRAL publication, UNCITRAL Model Law on
Cross-Border Insolvency: The Judicial Perspective, UN Sales No 23.V.I (2022)
(“The Judicial Perspective”), which discusses the UNCITRAL Model Law
20
from a judge’s perspective with the aim of providing general guidance on the
issues that a judge might need to consider in a given case, based on the intentions
of the drafters of the UNCITRAL Model Law and the experiences of those who
have used it in practice (The Judicial Perspective at para 3). The authors of The
Judicial Perspective expressly recognise that where States have amended the
UNCITRAL Model Law to suit local circumstances, different approaches might
be required if a judge concludes that the omission or modification of a particular
article from the text as enacted necessitates such a course (The Judicial
Perspective at para 1).
39 In ascertaining Parliament’s intention with regard to the ambit of

Art 2(h) of the SG Model Law, it is therefore imperative to note that the
UNCITRAL Model Law was not adopted in Singapore without modification.
In particular, Art 2(a) of the UNCITRAL Model Law, which corresponds to
Art 2(h) of the SG Model Law, defines a “foreign proceeding” as “a collective
judicial or administrative proceeding in a foreign State, including an interim
proceeding, pursuant to a law relating to insolvency in which proceeding the
assets and affairs of the debtor are subject to control or supervision by a foreign
court, for the purpose of reorganization or liquidation” [emphasis added]. When
Parliament adopted the UNCITRAL Model Law in the Third Schedule to the
IRDA as the SG Model Law, it added the words “or adjustment of debt” to the
definition of “foreign proceeding” in Art 2(h). What is significant is that
s 101(23) of the US Bankruptcy Code, which is the analogue of Art 2(h) of the
SG Model Law, contains the same additional words “or adjustment of debt”.
The appellants referred us to a working draft of the Companies (Amendment)
Bill 2017, which indicates that Art 2(h) of the SG Model Law was adapted from
s 101(23) of the US Bankruptcy Code, and this was not seriously disputed.
21
40 In this regard, we note that the phrase “adjustment of debt” appears in

various provisions within Chapter 11 of the US Bankruptcy Code. The purposes
of Chapter 11 include: (a) the preservation of going concerns and the
maximisation of property available to satisfy creditors (see Bank of America
National Trust and Savings Association v 203 North LaSalle Street Partnership
526 US 434 at 453); and (b) restructuring a business’s finances so that it may
continue to operate, pay its creditors and produce a return for its stockholders
(see In re The Bible Speaks 65 BR 415 (Massachusetts US Bankruptcy Court,
1986) at 425). It is thus apparent, and the respondent does not dispute, that the
inclusion of the words “adjustment of debt” in Art 2(h) of the SG Model Law
permits the recognition of foreign proceedings involving: (a) the restructuring
of a company’s debts; and/or (b) the reorganisation of a company’s affairs
through schemes of arrangement: see Neil Hannan, Cross-Border Insolvency:
The Enactment and Interpretation of the UNCITRAL Model Law (Springer,
2017) at p 65; Gerard McCormack & Wan Wai Yee, “The UNCITRAL Model
Law on Cross-Border Insolvency Comes of Age: New Times or New
Paradigms?” (2019) 54(2) Texas International Law Journal 273 at 289; and
Look Chan Ho, “Recognising an Australian Solvent Liquidation under the
UNCITRAL Model Law: In re Betcorp” (October 2009) Norton Journal of
Bankruptcy Law and Practice (“Look’s Article”). Neither of these situations is
necessarily limited to insolvent companies, as we explain in the paragraphs that
follow. In our judgment, it may also be inferred from Parliament’s deliberate
modification of Art 2(a) of the UNCITRAL Model Law in accordance with
s 101(23) of the US Bankruptcy Code that Parliament intended to bring within
the ambit of the SG Model Law proceedings that are recognisable under the
provisions of US law that correspond to the SG Model Law, specifically
Chapter 15 of the US Bankruptcy Code.
22
41 In sum, we are satisfied that the words “or adjustment of debt” were
included in Art 2(h) of the SG Model Law to enable the Singapore courts to
recognise under the SG Model Law:
(a) proceedings in foreign jurisdictions that are akin to schemes of

arrangement commenced under Singapore law and/or reorganisations
commenced under Chapter 11 of the US Bankruptcy Code; and
(b) proceedings recognisable under Chapter 15 of the US

Bankruptcy Code (which sets out the US’ adaptation of the UNCITRAL
Model Law).
42 This is significant because neither of the categories of proceedings set

out in the previous paragraph requires the subject company to be insolvent or in
severe financial distress as a prerequisite for commencement. Schemes of
arrangement may be commenced in Singapore under either Part 5 of the IRDA
or Part 7 of the Companies Act 1967 (2020 Rev Ed) (the “SG Companies Act”).
In relation to the former, s 63(1) of the IRDA provides that Part 5 will apply
where there is a compromise or arrangement between the company and its
creditors or any class of those creditors. In relation to the latter, under ss 210(1)
and 210(2) of the SG Companies Act, the court has the power to order a meeting
where a compromise or arrangement is proposed, upon the application of:
(a) the liquidator (in the case of a company being wound up); or (b) the company
or any creditor, member or holder of units of shares of the company (in any
other case). There is nothing in Part 5 of the IRDA or Part 7 of the SG
Companies Act that requires the subject company to be insolvent or in severe
financial distress before the court may grant relief in aid of any scheme of
arrangement or compromise contemplated in respect of the subject company.
Indeed, in holding that the pari passu principle should not be extended to
23
schemes which do not concern an insolvent company, this court recognised in

Hitachi Plant Engineering & Construction Co Ltd and another v Eltraco
International Pte Ltd and another appeal [2003] 4 SLR(R) 384 at [85] that there
are a myriad of situations in which schemes of arrangement could be deployed
in the corporate restructuring of solvent companies, for instance, to reorganise
the share capital of a company or in the reconstruction or merger of a group of
companies.
43 Similarly, corporate reorganisations in the US may be commenced under

Chapter 11 of the US Bankruptcy Code in respect of solvent companies (see In
re Integrated Telecom Express, Inc 384 F.3d 108 (3rd Cir, 2004) (“Re
Integrated Telecom”) at 121). Section 1121 of the US Bankruptcy Code, which
prescribes who may file a plan under Chapter 11, does not impose any
requirement as to the insolvency or severe financial distress of an applicant.
Likewise, s 109 of the US Bankruptcy Code, which prescribes the criteria to
qualify as a debtor under Chapter 11, does not include any requirement of
insolvency or severe financial distress.
44 As the US Bankruptcy Court observed in In re Johns-Manville

Corporation 36 BR 727 (SD New York US Bankruptcy Court, 1984) at 736 and
741, the drafters of the US Bankruptcy Code envisioned that a financially
beleaguered debtor with real debt and real creditors should not be required to
wait until the economic situation is beyond repair in order to file a
reorganisation petition. The reorganisation provisions of the US Bankruptcy
Code were thus drafted with the aim of liquidation avoidance by granting ready,
albeit not unfettered, access to Chapter 11. Indeed, it would make little sense to
allow companies recourse to reorganisation only when they are already
insolvent or in such severe financial distress as to be virtually insolvent. At the
same time, we recognise that Chapter 11 petitions filed by financially healthy
24
companies with no reason to seek rehabilitation or reorganisation may be

rejected by the US courts (see Re Integrated Telecom at 121). Chapter 11 was
designed with the object of affording a rehabilitative platform and that,
therefore, operates as a constraint on when it may be resorted to. But the critical
point for our purposes is that this regime is not restricted to insolvent companies
or those in severe financial distress.
45 As for proceedings that may be recognised under Chapter 15 of the US

Bankruptcy Code, it is instructive to examine the authorities in which
recognition of foreign proceedings was sought under that chapter. Re Betcorp
involved an Australian company, Betcorp Limited (“Betcorp”), which was
liquidated by its shareholders. Betcorp’s liquidators applied successfully for the
recognition of Betcorp’s voluntary liquidation in Australia as a foreign
proceeding under Chapter 15 of the US Bankruptcy Code, the US Bankruptcy
Court holding that Betcorp’s voluntary liquidation was a “foreign proceeding”
within the meaning of s 101(23) of the US Bankruptcy Code. Importantly, the
court held that the requirement that Betcorp’s liquidation be authorised or
conducted under a law related to insolvency or the adjustment of debt did not
entail that Betcorp had either to be insolvent or already contemplating invoking
the provisions of Australian law to adjust any debts (Re Betcorp at 282). To
much the same effect, the US Bankruptcy Court in In re ABC Learning Centres
Ltd 445 BR 318 (Delaware US Bankruptcy Court, 2010) (“Re ABC Learning
Centres”) and In re Manley Toys Limited 580 BR 632 (New Jersey US
Bankruptcy Court, 2018) (“Re Manley Toys”) granted recognition in respect of
foreign proceedings without considering whether the companies involved in
those proceedings were either insolvent or in severe financial distress.
46 Given what we have said at [40] above and in the light of the discussion
at [42]–[45], it may be inferred that the addition of the words “or adjustment of
25
debt” to the definition of “foreign proceeding” in Art 2(h) of the SG Model Law
was meant to empower the Singapore courts to recognise as foreign proceedings
under the SG Model Law, proceedings concerning a company that were
conducted under a foreign law relating to insolvency or adjustment of debt, even
if that company was solvent.
47 In seeking to construe the provision purposively, the Judge had regard

to certain extraneous materials to ascertain the purpose of Art 2(h) of the SG
Model Law, to which we will turn shortly. We do not disagree with the Judge
that pursuant to s 252(2) of the IRDA, in interpreting provisions of the SG
Model Law, regard may be had to documents forming part of the record
pertaining to the preparation of the UNCITRAL Model Law, as well as the 1997
Guide. Furthermore, the 2013 Guide may be considered where the 1997 Guide
is silent and to the extent that there is no conflict with the 1997 Guide (see Re
Zetta Jet Pte Ltd and others (Asia Aviation Holdings Pte Ltd, intervener) [2019]
4 SLR 1343 (“Re Zetta”) at [37]). However, in construing the extraneous
material, it is incumbent on the court to do so in the light of the fact that
Parliament did not adopt the UNCITRAL Model Law in its original form but
added the words “or adjustment of debt” to Art 2(h) of the SG Model Law. It
seems clear that these words were intended to enable the recognition of certain
types of foreign proceedings, including those that do not require that the
company be insolvent or in severe financial distress. To the extent that the words
“or adjustment of debt” were not considered in the material referred to by the
Judge, we think, with respect, that he fell into error. As was noted in Tan Cheng
Bock at [35], [43] and [54(c)(ii)], the legislative purpose of a statute should
ordinarily be gleaned from the text itself, which has primacy over any
extraneous material. The key textual amendment that was deliberately made by
Parliament when it adopted the UNCITRAL Model Law considerably
26
diminishes the weight of the other extraneous material that was relied on by the
Judge. In any event, for the reasons we set out below at [55]–[68], we do not
think the extraneous material demonstrates that it would undermine the purpose
or object of the UNCITRAL Model Law to extend its scope to proceedings
involving solvent companies.
48 This conclusion is also consistent with the presumption of insolvency

under Art 31 of the SG Model Law, which provides that:
In the absence of evidence to the contrary, recognition of a

foreign main proceeding is, for the purpose of commencing a
proceeding under Singapore insolvency law, proof that the
debtor is unable to pay its debts within the meaning given to
the expression under Singapore insolvency law.
If it were a pre-requisite for recognition that the company involved must be

insolvent, then Art 31 of the SG Model Law, which presumes the insolvency of
a company upon the recognition of a proceeding involving that company as a
foreign main proceeding, would be largely superfluous.
The Judge’s application of the Purposive Approach
49 We turn to consider how the Judge applied the Purposive Approach

when he set out to interpret Art 2(h) of the SG Model Law. The Judge examined
various academic commentaries and the preparatory material pertaining to the
UNCITRAL Model Law (GD at [72]–[76] and [81]–[98]), on the basis of which
he concluded that the underlying purpose of the UNCITRAL Model Law is to
“empower a recognising court to extend recognition to a foreign proceeding the
subject of which is a company that is insolvent or in severe financial distress”.
In line with this, the Judge considered that the words “under a law relating to
insolvency” contemplate a law that prescribes a process applicable to a company
that is either insolvent or in severe financial distress (GD at [99]). Thus far, we
27
have no real difficulty with the Judge’s analysis and his conclusion that when
the UNCITRAL Model Law was prepared, its primary purpose was to lay down
a framework for the co-ordinated cross-border management of proceedings
involving insolvent companies. But the Judge then held that the intent of the
UNCITRAL Model Law was therefore to exclude from its scope the liquidation
of solvent companies, and further that it would be contrary to the underlying
purpose of the UNCITRAL Model Law to grant recognition of foreign
proceedings concerning companies which are neither insolvent nor in severe
financial distress. We do not follow this part of the Judge’s analysis.
50 Simply put, it does not seem to us to follow from the primary purpose
of the UNCITRAL Model Law being to prescribe a co-ordinated regime for
proceedings involving insolvent companies, that this must therefore exclude
such proceedings where they concern solvent companies; or that to extend the
operation of the UNCITRAL Model Law to solvent companies would be
contrary to or would otherwise undermine its primary purpose.
51 The Purposive Approach is enshrined in s 9A(1) of the IA and

contemplates that in the interpretation of a written law, an interpretation that
would promote the purpose or object underlying the written law shall be
preferred over one that would not. To that end, the Purposive Approach requires
the court to ascertain the possible interpretations of the relevant provision and
to compare the possible interpretations against the purposes or objects of the
relevant statute. We have explained at [37]–[48] above that at least in the
context of the SG Model Law, the legislative purpose of that law was not as
narrow as the Judge framed it. But even in the context of the UNCITRAL Model
Law, the Purposive Approach does not yield the conclusion that the Judge
arrived at because the Broad Approach does not seem to us to undermine the
primary purpose of that instrument.
28
52 To put it another way, the present case does not require the court to
choose between two interpretations of Art 2(h) which are incompatible or
mutually exclusive, in the sense that one interpretation would further the
underlying legislative purpose or object while the other would undermine that.
Even in relation to the SG Model Law, it is uncontroversial that it is primarily
intended to be applicable to insolvent or financially distressed companies. That
much is clear from paras (c) and (e) of the preamble, which state that the
purposes of the SG Model Law include the provision of effective mechanisms
for dealing with cases of cross-border insolvency so as to promote:
(a) the “fair and efficient administration of cross‑border

insolvencies that protects the interests of all creditors and other
interested persons, including the debtor”; and
(b) the “facilitation of the rescue of financially troubled businesses,

thereby protecting investment and preserving employment”.
53 And it is common ground among all parties that a proceeding concerning

an insolvent company would, assuming the other conditions are met, be
recognised as a foreign proceeding. But what then of solvent companies? In our
judgment, extending the ambit of the UNCITRAL Model Law beyond its
primary purpose of providing for the co-ordinated cross-border management of
proceedings concerning insolvent companies to encompass such proceedings
concerning solvent companies would equally advance its primary purpose,
while conferring some additional advantages that are consistent with the broader
goal of securing a co-ordinated approach to the liquidation of companies with
transnational operations. We explain this in the next section where we consider
the extraneous material that the Judge relied on.
29
54 In sum, we do not think the Purposive Approach leads us to the

conclusion that the Judge arrived at because:
(a) the addition of the words “or adjustment of debt” positively

suggests a Parliamentary object to extend the SG Model Law to
proceedings concerning solvent companies; and
(b) even aside from this, extending the SG Model Law to such
proceedings would not be contrary to or undermine the primary
legislative object of facilitating the co-ordination of cross-border
insolvencies.
Whether solvent companies are excluded under the UNCITRAL Model Law
55 As we have noted, based on the preparatory material pertaining to the

purpose of the UNCITRAL Model Law, the Judge concluded that the intent of
the UNCITRAL Model Law was to “exclude the liquidation of solvent
companies from [its] scope” and instead it was to “empower a recognising court
to extend recognition to a foreign proceeding the subject of which is a company
that is insolvent or in severe financial distress” (see GD at [79] and [99]). We
examine the following portions of the preparatory material, the 1997 Guide and
the 2013 Guide which seem to lend the strongest support to the Judge’s
conclusion.
56 First, the 1997 Guide explains that the word “insolvency” as used in the
title of the UNCITRAL Model Law refers to “various types of collective
proceedings against insolvent debtors” (at para 51). This was elaborated upon
in the 2013 Guide at para 48, which states:
Acknowledging that different jurisdictions might have different

notions of what falls within the term ‘insolvency proceedings’,
the [UNCITRAL] Model Law does not define the term
30
‘insolvency’. However, as used in the Model Law, the word

‘insolvency’ refers to various types of collective proceedings
commenced with respect to debtors that are in severe financial
distress or insolvent. The reason is that the [UNCITRAL] Model
Law covers proceedings concerning different types of debtors
and, among those proceedings, deals with proceedings aimed at
liquidating or reorganizing the debtor as a commercial entity. A
judicial or administrative proceeding to wind up a solvent entity
where the goal is to dissolve the entity and other foreign
proceedings not falling within [Art 2(a)] are not insolvency
proceedings falling within the scope of the Model Law. Where a
proceeding serves several purposes, including the winding up
of a solvent entity, it falls under [Art 2(a) of the UNCITRAL Model
Law] only if the debtor is insolvent or in severe financial distress.
[emphasis added]
57 The 1997 Guide (at para 68) and the 2013 Guide (at para 63) further
explain that, by specifying the required characteristics of a “foreign
proceeding”, Art 2(a) of the UNCITRAL Model Law serves to limit the law’s
scope of application. The 2013 Guide also states that the term “insolvency” in
Art 2(a) is used to describe, on a broad level, “proceedings involving debtors
that are in severe financial distress or insolvent”, and that the focus of the
UNCITRAL Model Law is upon such debtors and the laws that address the
financial distress of those debtors (see the 2013 Guide at paras 65 and 67).
Specifically in relation to the phrase “law relating to insolvency”, the 2013
Guide explains at para 73 that:
This formulation is used in the [UNCITRAL] Model Law to

acknowledge the fact that liquidation and reorganization might
be conducted under law that is not labelled as insolvency law
(e.g. company law), but which nevertheless deals with or
addresses insolvency or severe financial distress. The purpose
was to find a description that was sufficiently broad to
encompass a range of insolvency rules irrespective of the type
of statute or law in which they might be contained and
irrespective of whether the law that contained the rules related
exclusively to insolvency. A simple proceeding for a solvent legal
entity that does not seek to restructure the financial affairs of the
entity, but rather to dissolve its legal status, is likely not one
pursuant to a law relating to insolvency or severe financial
distress. [emphasis added]
31
58 The upshot of the extracts that we have reproduced in the preceding

paragraphs is that the UNCITRAL Model Law, as originally contemplated by
its drafters, was undeniably intended to be focused primarily on companies that
are either insolvent or in severe financial distress. It is thus unsurprising that the
1997 Guide and the 2013 Guide explain, in that context, that for the purposes of
Art 2(a) of the UNCITRAL Model Law, proceedings pursuant to a “law relating
to insolvency” generally do not include proceedings concerning solvent
companies. That was very likely the view at the time the UNCITRAL Model
Law was drafted. It is also almost certainly the case that the need for a co-
ordinated approach arose acutely in the context of insolvent companies.
59 That said, we do not think that the preparatory material, the 1997 Guide
and the 2013 Guide go so far as to suggest that expanding the ambit of the
UNICTRAL Model Law to include solvent companies would undermine the
purpose of the UNCITRAL Model Law. Nor does the preparatory material
suggest that the processes available under the provisions of the UNCITRAL
Model Law were intended to be excluded from their application to solvent
companies.
60 We are fortified in this view by the observations in The Judicial

Perspective regarding the interpretation of the phrase “pursuant to a law relating
to insolvency” in the 2013 Guide. At paras 83–85, the authors of The Judicial
Perspective set out the different approaches that have been taken towards
interpreting the phrase “law relating to insolvency”. By then, Re Stanford
International Bank Ltd and another [2010] 3 WLR 941 (“Re Stanford (CA)”)
and Re Betcorp had been decided and in these decisions, the courts in the UK
and the US had held that the UNCITRAL Model Law could apply to solvent
companies. The authors, having noted the developments in case law, observed
at para 86:
32
Following consideration and discussion of this issue in

UNCITRAL Working Group V (Insolvency Law) and the
Commission, the [2013 Guide] clarifies that the word
‘insolvency’, as used in the [UNCITRAL Model Law], refers to
various types of collective proceedings commenced with respect
to debtors that are in severe financial distress or insolvent. A
judicial or administrative proceeding to wind up a solvent entity
where the goal is to dissolve the entity and other foreign
proceedings not falling within [Art 2(a) of the UNCITRAL Model
Law] are not insolvency proceedings within the scope of the
[UNCITRAL Model Law]. Where a type of proceeding serves
several purposes, including the winding up of a solvent entity,
it falls under [Art 2(a) of the UNCITRAL Model Law] only if the
debtor is insolvent or in severe financial distress.
In making this observation, the authors also referred to para 48 of the 2013
Guide (which has been reproduced above at [56]). That is significant because,
having acknowledged the different approaches that had been and may be taken
to the interpretation of a “law relating to insolvency”, the authors do not suggest
that the position in Re Betcorp and Re Stanford is contrary to or otherwise
undermines the underlying purpose of the UNCITRAL Model Law. There is
also no suggestion that proceedings concerning solvent companies are
positively to be excluded from the scope of the UNCITRAL Model Law.
61 Further, in the Report of Working Group V (Insolvency Law) on the work

of its thirty-ninth session, UNCITRAL, 44th Sess, UN Doc A/CN.9/715 (2010),
the Working Group noted that Art 2(a) of the UNCITRAL Model Law had
“given rise to diverse interpretation in case law”, and the question was raised as
to whether the Working Group should clarify the definition of certain elements
in Art 2(a). Specifically in response to the question of whether there was a need
to define the requirement of the insolvency of the debtor, it was said that this
was unnecessary as such a requirement “would flow from the terms ‘pursuant
to a law relating to insolvency’”. The Working Group then stated at para 19:
With respect to the need of providing a definition for the terms

‘pursuant to a law relating to insolvency’, it was felt that
33
difficulties in judicial interpretations of those terms had

resulted from equating terminology of legislation of different
jurisdictions. It was noted that the Working Group did not aim
for unification of insolvency laws, but to provide clarity on
concepts in the Model Law. In that respect, it was said that it
would be impossible to further detail the definition of a ‘foreign
proceeding’ that would still capture all domestic proceedings. It
was further noted that the notion of ‘a law relating to insolvency’
already provided the desirable degree of flexibility. … [emphasis
added]
62 The reluctance of the Working Group to expressly prescribe a

requirement of insolvency or severe financial distress in Art 2(a) of the
UNCITRAL Model Law, despite being cognisant of the differing interpretations
of Art 2(a) by various courts in different countries, reinforces our conclusion
that extending the recognition regime under the UNCITRAL Model Law to
proceedings concerning solvent companies is neither inconsistent nor
incompatible with the primary purpose of the UNCITRAL Model Law.
63 We note in this regard that Mr Kumar accepted at the hearing before us

that there is nothing in the preparatory material which suggests that solvent
proceedings were meant to be excluded from the ambit of the UNCITRAL
Model Law, much less that the purposes of the UNCITRAL Model Law would
be undermined by the inclusion of such proceedings within its scope. We are
therefore satisfied that even if the words “or adjustment of debt” were not added
to Art 2(h) of the SG Model Law, and Art 2(a) of the UNCITRAL Model Law
was adopted in its original form, it would not be contrary to the purpose of the
UNCITRAL Model Law to extend its scope to include solvent companies.
64 We would venture further to say that the Broad Approach and

consequently, interpreting Art 2(h) of the SG Model Law as encompassing
solvent proceedings within its ambit, is consistent with the overall purpose of
the UNCITRAL Model Law. The UNCITRAL Model Law is designed to
34
provide a harmonised approach to the treatment of cross-border insolvency

proceedings in national legal systems, to facilitate co-operation between courts
and office holders involved in the same insolvency across different jurisdictions,
to provide for the recognition of proceedings (and the consequences of such
recognition), and to afford direct access by foreign representatives of such
companies to the courts of the enacting state (Goode on Principles of Corporate
Insolvency Law (Kristin van Zwieten gen ed) (Sweet & Maxwell, 5th Ed, 2018)
(“Goode on Insolvency Law”) at para 16-16; see also 1997 Guide at paras 1–3
and 2013 Guide at paras 1–3). To this end, one of the four key principles
underlying the UNCITRAL Model Law is the co-operation and co-ordination
principle, which obliges courts and insolvency representatives to communicate
and co-operate in order to ensure that the debtor’s insolvency estate is
administered fairly and efficiently, with a view to maximising benefits to
creditors (The Judicial Perspective at para 14(d)). It appears to us, as the Judge
noted (GD at [78]), that at least one of the fundamental objects of the
UNCITRAL Model Law is to prevent creditors from rushing to satisfy their
claims against a debtor company in a particular jurisdiction in order to gain an
advantage over other creditors. This in turn ensures a sensible and orderly
dissolution of a company or facilitates the successful rehabilitation of the
company, as the case may be.
65 While the concerns mentioned above arise predominantly in the context

of an insolvent company whose assets are insufficient to satisfy the claims of
all its creditors in full, solvent regimes and insolvent regimes are seldom
mutually exclusive. A company undergoing a solvent, voluntary liquidation
may subsequently need to come under the court’s supervision should it transpire
that the company is insolvent. In such circumstances, the relevant legislation
may provide for mechanisms to facilitate the transition between solvent and
35
insolvent regimes. For instance, pursuant to s 496(1)(a) of the Australian

Corporations Act 2001 (Cth) (the “Australian Corporations Act”), where a
liquidator is of the opinion that a company will not be able to pay or provide for
the payment of its debts in full in accordance with the declaration of solvency
filed by the company’s directors pursuant to s 494, the liquidator must, among
other things, apply for the company to be wound up in insolvency. Relatedly,
s 467B allows the court to order the winding up of a company even if the
company is already being wound up voluntarily. Conversely, s 482 empowers
the court to terminate a winding up. Indeed, it was against this backdrop that the
court in Re Betcorp considered that companies had “the statutory ability to shift
among various forms of dissolution given changing circumstances” under the
Australian Corporations Act (see Re Betcorp at 279 and 282). To similar effect,
s 124(1) of the Cayman Act and O 15 r 1 of the Cayman CWR oblige a liquidator
to apply for an order that the solvent, voluntary liquidation of a company
continues under the Cayman Grand Court’s supervision if the directors of the
company fail to sign a declaration of solvency (see [7] above). In our judgment,
the possibility of movement between solvent and insolvent regimes provides
further support for adopting the Broad Approach. In view of the possibility that
a proceeding concerning a solvent company might transition into one dealing
with an insolvent entity, that proceeding should be regarded as one being
conducted under a law relating to insolvency or adjustment of debt as long as
the relevant law contains provisions dealing with insolvency or adjustment of
debt.
66 Furthermore, it bears reiterating a proceeding must satisfy other

requirements to qualify as a foreign proceeding within the meaning of Art 2(h)
of the SG Model Law. In our judgment, the purposes of the UNCITRAL Model
Law identified above, in particular, to ensure the co-ordinated and orderly
36
dissolution or successful rehabilitation of a company, would be engaged in

respect of a proceeding which satisfies these other requirements, even if the
company in question is solvent. Specifically, Art 2(h) requires among other
things that: (a) the proceeding in question must be collective in nature, which as
we elaborate below at [104], means that the proceeding must involve all
creditors of the debtor generally and deal with substantially all of the debtor’s
assets and liabilities; (b) the property and affairs of the debtor must be subject
to the foreign court’s control or supervision; and (c) the overall purpose of the
proceeding must be the reorganisation or liquidation of a company. The sum
effect of these requirements is to exclude from the scope of the SG Model Law
certain types of private liquidations or restructurings commenced by individual
creditors in respect of only part of company’s assets, simple proceedings such
as striking a company off the register, and proceedings pertaining to the
investigation of misappropriated corporate funds (see [105] below). Quite
clearly, in such proceedings, the need for co-operation and co-ordination
between creditors, office holders and courts in different jurisdictions simply
does not arise.
67 Conversely, where a proceeding involves all the creditors of a company

and its assets and liabilities for the purpose of the company’s reorganisation or
liquidation, and the company’s property and affairs are placed under the foreign
court’s control or supervision, the importance of co-operation and co-ordination
between the different stakeholders becomes paramount in securing an orderly
dissolution and/or the successful rehabilitation of the company. Put simply,
where the other requirements of Art 2(h) are satisfied, it seems to us that the
rationale for according recognition of foreign proceedings would be engaged, at
least to some degree, regardless of the solvency of the company in question.
This is all the more so where the overall status of a company with transnational
37
operations may be solvent, while its branches may not be solvent within
particular jurisdictions.
68 For these reasons, we are satisfied that adopting the Broad Approach,
and in consequence interpreting Art 2(h) of the SG Model Law as encompassing
solvent proceedings in its ambit, would not contradict or undermine the
underlying object of the UNCITRAL Model Law. On the contrary, such an
approach coheres with the purposes of the UNCITRAL Model Law which we
have identified at [64] above.
The prevailing approach to the interpretation of the UNCITRAL Model Law
69 A further factor that militates in favour of interpreting Art 2(h) of the

SG Model Law as including proceedings concerning solvent companies is the
desire to ensure that our interpretation of Art 2(h) of the SG Model Law is
broadly harmonious with the approaches taken in other jurisdictions. Article 8
of the SG Model Law mandates that in the interpretation of the SG Model Law,
regard is to be had to its international origin and the need to promote uniformity
in its application and the observance of good faith. In this regard, the court in
Re Zetta noted at [38] that as far as possible, Singapore courts ought to attempt
to “tack as closely as possible to the general interpretive trends taken in other
jurisdictions that apply the Model Law in its various enactments”. It is
noteworthy that in the majority of cases across various jurisdictions, courts have
held that the scope of their respective adaptations of the UNCITRAL Model
Law includes proceedings involving solvent companies. We set out the position
in the US, the UK, Australia and New Zealand.
38
The position in the US
70 We first consider the position in the United States. The equivalent of

Art 2(h) of the SG Model Law in the US is s 101(23) of the US Bankruptcy
Code, which provides:
The term ‘foreign proceeding’ means a collective judicial or

administrative proceeding in a foreign country, including an
adjustment of debt in which proceeding the assets and affairs
court, for the purpose of reorganization or liquidation.
71 The position in the US is encapsulated in the landmark decision in

Re Betcorp, to which we have referred, and which concerned an application for
recognition of Betcorp’s voluntary liquidation in Australia as a foreign
proceeding under Chapter 15 of the US Bankruptcy Code. The US court held
that there was no requirement for a company to be insolvent or contemplating
the adjustment of any debts in order for a proceeding concerning that company
to be regarded as being conducted under a law related to insolvency or the
adjustment of debts. In particular, the court noted that the Australian
Corporations Act “regulates the whole of the corporate life-cycle of an
Australian corporation”, and that several sub-parts of Chapter 5 of the
Australian Corporations Act (on External Administration) contain provisions
that deal with corporate insolvency and allow for the adjustment of debts (Re
Betcorp at 282). These facts, coupled with “the statutory ability to shift among
various forms of dissolution given changing circumstances”, led the court to
conclude that the Australian Corporations Act was a law related to insolvency
or the adjustment of debt. On this basis, the US court held that Betcorp’s
voluntary winding up, which was conducted under the Australian Corporations
Act, was a proceeding conducted under a law relating to insolvency or
adjustment of debt for the purposes of s 101(23) of the US Bankruptcy Code:
39
see Re Betcorp at 281–282). In other words, the position in the US is that the
requirement that a proceeding be conducted under a law relating to insolvency
or adjustment of debt would be satisfied as long as the law in question that
contained the specific provision under which the proceeding was conducted also
contains provisions dealing with insolvency or the adjustment of debt, even if
those provisions are not implicated in the case at hand. This is what we have
referred to above as the Broad Approach.
72 Re Betcorp has attracted a degree of academic criticism. In Cross-

Border Insolvency (Richard Sheldon QC gen ed) (Bloomsbury Publishing, 4th
Ed, 2015) (“Sheldon on Cross-Border Insolvency”), it is noted at para 3.35 that
although the members’ voluntary winding up in Re Betcorp was initiated under
a body of law which included provisions for an insolvent liquidation, “that
coincidence does not necessarily justify bringing within the UNCITRAL Model
Law’s scheme of recognition and assistance a proceeding in relation to a solvent
company, the purpose of which includes the return of a surplus to members”.
Importantly, however, this is qualified by the observation that:
Unless some specific modification is made to the UNCITRAL

Model Law, it is arguable that there is no obvious justification
for allowing creditors’ rights to be restrained by recognising a
solvent liquidation as a foreign proceeding. [emphasis added]
73 As an example of such a modification, the authors refer to s 101(23) in

the context of Chapter 15 of the US Bankruptcy Code, which “modifies the
UNCITRAL Model Law to enable recognition of a solvent scheme of
arrangement”. In a similar vein, and as we have explained above at [37]–[46],
the addition of the words “or adjustment of debt” to Art 2(h) of the SG Model
Law was a deliberate modification of Art 2(a) of the UNCITRAL Model Law,
which was meant to extend the scope of the SG Model Law to solvent
companies.
40
74 The respondent also relies on the critique of Re Betcorp in Look’s

Article, where it is suggested that the decision in Re Betcorp is open to question
for a number of reasons. Those pertinent to the present appeal may be
summarised as follows:
(a) The US Bankruptcy Court relied on the Australian version of the

UNCITRAL Model Law to conclude that a members’ voluntary winding
up was a “foreign proceeding” for the purposes of Chapter 15 of the US
Bankruptcy Code. However, the US court appears to have overlooked
the legislative history behind Australia’s adaptation of the UNCITRAL
Model Law. In particular, the Commonwealth of Australia, Parliament,
Cross-Border Insolvency: Corporate Law Economic Reform Program
Proposals for Reform Paper No 8 (Discussion Paper, 2002) (“the
CLERP Paper”) expressly states that the scope of the UNCITRAL
Model Law as implemented in Australia would not extend to a members’
voluntary winding up or a winding up by a court on just and equitable
grounds as such proceedings may not be insolvency-related.
(b) The US Bankruptcy Court also considered that Australia’s

Parliament viewed a voluntary winding up as a proceeding that is
conducted under a law relating to insolvency under Australia’s version
of the UNCITRAL Model Law. The US Bankruptcy Court had relied on
the explanatory memorandum (the “Explanatory Memorandum”)
accompanying the Cross-Border Insolvency Bill 2008 (Cth), which
enacted the UNCITRAL Model Law in Australia. The Explanatory
Memorandum identified “Chapter 5 (other than Parts 5.2 and 5.4A)” of
the Australian Corporations Act as a law relating to insolvency. The US
Bankruptcy Court thought it significant that Part 5.5 of Chapter 5 of the
Australian Corporations Act, which governed the voluntary winding up
41
of a company, was not excluded from the description of laws relating to

insolvency in the Explanatory Memorandum. However, it failed to
appreciate the distinction between a members’ voluntary winding up
(which is generally a solvent liquidation) and a creditors’ voluntary
winding up (which is generally an insolvent liquidation). The fact that
both forms of winding up are contained in Part 5.5 of Chapter 5 of the
Australian Corporations Act, which was identified as a “law relating to
insolvency”, did not necessarily mean that a members’ voluntary
liquidation would fall within the ambit of Australia’s version of the
UNCITRAL Model Law.
(c) Recognising a foreign members’ voluntary liquidation could

entail an automatic stay on all litigation against the company. Yet, it is
difficult to see why a proceeding primarily aimed at conferring benefit
on shareholders should have the effect of impeding creditors from
enforcing their rights against the company through litigation.
75 In relation to the first two criticisms noted at [74(a)] and [74(b)] above,
we accept that the US Bankruptcy Court in Re Betcorp may not have fully
appreciated the legislative history behind Australia’s adoption of the
UNCITRAL Model Law. However, as the Judge pointed out, the question
before the US court in Re Betcorp was whether Betcorp’s voluntary liquidation
was a “foreign proceeding” within the meaning of s 101(23) of the US
Bankruptcy Code (GD at [139]). That is a question reserved for the recognising
court which will determine this in accordance with its own application of the
UNCITRAL Model Law. The US court is not bound by the way in which the
foreign proceeding is characterised under Australian law (see Re Agrokor DD
and in the matter of the Cross-Border Insolvency Regulations 2006 [2017] All
ER (D) 83 (Nov) (“Re Agrokor”) at [34]). Furthermore, apart from Australia’s
42
adoption of the UNCITRAL Model Law and the Explanatory Memorandum,

there was another key pillar underlying the US court’s conclusion that Betcorp’s
voluntary liquidation was conducted under a law relating to insolvency or
adjustment of debt. That was the fact that several sub-parts of Chapter 5 of the
Australian Corporations Act contain provisions that deal with corporate
insolvency and also allow for the adjustment of debt. Further, these also
contemplated the possibility of shifting among various pathways to dissolution
in the light of changing circumstances (see above at [71]). Therefore, even if the
US court had misunderstood the Australian legislature’s intentions with regard
to Australia’s version of the UNCITRAL Model Law, that is not an adequate
reason not to adopt the approach in Re Betcorp. As to the suggestion that the
court in Re Betcorp may have misunderstood the legislative intention behind
Australia’s enactment of the UNCITRAL Model Law, we note that this is not
how at least one Australian court has approached the question (see [90]–[91]
below).
76 As to the third criticism at [74(c)] above, such concerns may be

adequately managed through the recognising court granting recognition subject
to conditions. We address this point in more detail below at [96].
77 We now consider other decisions of the US Bankruptcy Court. In Re

ABC Learning Centres, the boards of an Australian Company (“ABC
Learning”) and its wholly-owned subsidiary (“ABC Holdings”) resolved that
the companies were likely to become insolvent and should enter voluntary
administration pursuant to the Australian Corporations Act. Petitions were filed
before the US Bankruptcy Court seeking recognition of the voluntary
administration proceedings, which were subsequently converted by the
creditors of the companies into liquidation proceedings. Endorsing Re Betcorp,
the US court held that the liquidations of ABC Learning and ABC Holdings
43
were authorised or conducted under a law related to insolvency or the

adjustment of debts for the purposes of s 101(23) of the US Bankruptcy Code,
as numerous subsections within the Australian Corporations Act address
corporate insolvency and the adjustment of corporate debt (see Re ABC
Learning Centres at 331). Importantly, in determining that the Australian
Corporations Act was a law related to insolvency or the adjustment of debts, the
court did not consider the companies’ solvency or financial status.
78 In Re Manley Toys, a Hong Kong company entered into voluntary

liquidation in Hong Kong in the face of ongoing litigation, including a pending
sanctions motion in a US court in connection with a judgment debt owed by the
company, and alleged declining sales. The voluntary liquidation was
commenced under the Companies (Winding Up and Miscellaneous Provisions)
Ordinance (Cap 32) (HK) (the “CWMPO”), which both parties’ experts on
Hong Kong insolvency law agreed set forth the framework for liquidating a
company. The US Bankruptcy Court determined that the voluntary liquidation
was conducted under a law related to insolvency or adjustment of debts (see Re
Manley Toys at 638 and 643). As was the case in Re Betcorp and Re ABC
Learning Centres, the solvency status of the company was not a relevant
consideration in the court’s decision that the Hong Kong proceeding was
conducted under a law related to insolvency or adjustment of debts.
79 The respondent relies on In re Global Cord Blood Corporation 2022

WL 17478530 (SD New York US Bankruptcy Court) (“Re Global Cord”), to
contend that even though the court in that case adopted the Broad Approach, the
decision illustrates that courts in the US would nonetheless consider whether a
foreign proceeding concerns an insolvent or severely financially distressed
company in determining whether to grant recognition under Chapter 15 of the
US Bankruptcy Code. In our judgment, the respondent’s reliance on Re Global
44
Cord is misplaced. The US Bankruptcy Court accepted that the relevant

Cayman proceeding was brought under the “just and equitable” ground for
winding up with the purpose of preventing corporate misconduct, and not under
the insolvency provisions of the Cayman Act (Re Global Cord at 3 and 12). It
then went on to conclude that the Cayman proceeding was not a “foreign
proceeding” as was required for Chapter 15 recognition because the Cayman
proceeding was neither collective nor for the purpose of reorganisation or
liquidation within the meaning of s 101(23) of the US Bankruptcy Code (Re
Global Cord at 8–9 and 12–13).
80 What is material is that notwithstanding that the Cayman proceeding

was not brought under the insolvency provisions of the Cayman Act, the US
Bankruptcy Court in Re Global Cord opined that the Cayman Act satisfied the
definitional requirement of a “law relating to insolvency or adjustment of debt”.
Importantly, the court’s observation that the purpose of Chapter 15 was to assist
foreign courts dealing with “insolvency” was made in the limited context of
explaining the case law’s focus on the role and impact of creditors in
determining whether a proceeding is “collective”. The court did not, however,
hold that the solvency status of a company would bear on its decision to grant
recognition under Chapter 15. The court in fact expressly affirmed the decision
in Re Betcorp, observing (at 9):
The relevant test is not whether the currently pending

proceeding concerns insolvency or adjustment of [debt], or even
whether the current proceeding in some sense relates to those
objectives, but rather whether the proceeding is being brought
under a ‘law’ that ‘relat[es] to’ insolvency or adjustment of debt.
Further, section 101(23) is to be ‘broadly construed.’ … This
guidance counsels against an unduly grudging application of
this flexibly worded test by narrowly examining whether the
specific subsections of the governing Cayman statutory scheme
that are presently being applied redress insolvency or creditor
rights.
45
81 On the court’s observation that the foreign proceeding was neither

“collective” nor “for the purpose of reorganization or liquidation” as the law
requires, it was found on the facts of the case that the Cayman proceeding fell
outside the range of matters that Chapter 15 was designed to address. In
delineating the limits of this range of matters, the court should examine all the
criteria spelt out in the relevant provision – in our context, Art 2(h) of the SG
Model Law – without being fixated on the solvency status of the relevant
company.
The position in the UK
82 The UK equivalent of Art 2(h) of the SG Model Law is Art 2(i) of

Schedule 1 to The Cross-Border Insolvency Regulations 2006 (SI 2006
No 1030) (UK) (respectively, “Art 2(i) of the UK Model Law” and the “CBIR”),
which defines a “foreign proceeding” as:
[A] collective judicial or administrative proceeding in a foreign

State, including an interim proceeding, pursuant to a law
relating to insolvency in which proceeding the assets and affairs
court, for the purpose of reorganisation or liquidation[.]
83 In Re Stanford International Bank Ltd and others [2009] EWHC 1441

(Ch) (“Re Stanford (HC)”), a company (“SIB”) was liquidated by the court in
Antigua and Barbuda pursuant to s 300 of the International Business
Corporations Act (Cap 222) (Antigua and Barbuda) (the “IBCA”), and
liquidators were appointed pursuant to ss 304–306 of the IBCA. Section 300 of
the IBCA pertained to the liquidation and dissolution of companies under the
supervision of the court where the company had failed to comply with
regulatory requirements. Lewison J found that the liquidators of SIB were
appointed pursuant to a law relating to insolvency, notwithstanding that
46
insolvency did not feature as a ground under s 300 of the IBCA. In particular,
he observed at [94]:
It is, in my judgment, clear from the court’s order and the

judgment of [the court in Antigua and Barbuda] that it was not
basing the order on section 300 alone. It made the order
because, having considered the evidence, it concluded that it
was just and equitable that SIB be wound up. An important part
of the evidence was that SIB was insolvent and could not be
reorganised via the receivership. In my judgment at least one of
the reasons why [the judge in Antigua and Barbuda] made the
order that he did was that he was satisfied that SIB was
insolvent. [emphasis added]
84 On appeal in Re Stanford (CA), the Court of Appeal (“EWCA”) came to

the same conclusion as Lewison J albeit for slightly different reasons. The
EWCA held that for the purposes of the definition of “foreign proceeding”
under the Art 2(i) of the UK Model Law, it was necessary to start by identifying
the law under which the relevant proceedings had been brought and was being
pursued, before considering whether that law related to insolvency and whether
in the light of the other factors to which the definition referred, the proceeding
could be regarded as being brought “pursuant” to that law (Re Stanford (CA) at
[24], per Sir Andrew Morritt C). Applying this approach, the EWCA identified
Part IV of the IBCA as the law under which SIB’s liquidation proceedings had
been brought, and held that Part IV was a law relating to insolvency because it
“provided for the winding up of corporations incorporated in Antigua for the
purpose of carrying on an international trade or business on just and equitable
grounds, which included insolvency, as well as infringements of regulatory
requirements” (Re Stanford (CA) at [15]). A key point to note is that in Re
Stanford (CA), the insolvency of the company was not taken into account in
determining whether the company’s liquidation was conducted under a law
relating to insolvency. Instead, the focus was on whether insolvency was one of
the grounds for winding up within Part IV of the IBCA.
47
85 In Re Agrokor, a court in Croatia ordered the extraordinary

administration of a company incorporated in Croatia (“Agrokor DD”), under the
Law on Extraordinary Administration Proceeding in Companies of Systemic
Importance for the Republic of Croatia (the “Extraordinary Administration
Law”). The High Court of England and Wales held that the Extraordinary
Administration Law was a law relating to insolvency for the purposes of the
CBIR (Re Agrokor at [77]). In particular, having examined the relevant case law
in the US, the UK and Australia, the court observed (at [63] and [73]):
63. From these authorities and guides to interpretation, it

is clear that the requirement that the law under which the
proceeding is brought be ‘an insolvency law’ is satisfied if
insolvency is one of the grounds on which the proceeding can be
commenced, even if (as in Re Betcorp) insolvency could not
actually be demonstrated, and there was another basis for
commencing the proceeding. The matter is obviously all the
clearer if insolvency can indeed be demonstrated.
…
73. It is clear that the test applied [by the courts in Belgrade
and Montenegro] for a law relating to insolvency is whether
under the law concerned there must necessarily be insolvency
shown in relation to all the companies concerned. That is far
from the test applied in the ‘common law’ cases discussed
above, where it was accepted that a law could be a law relating
to insolvency if insolvency was one of the grounds on which a
proceeding could be brought. Indeed, in [Re Betcorp], the
evidence was that the company subject to members’ voluntary
winding up was in fact solvent. But insolvency would have been
a basis for such a winding up, as it was in [Re Stanford]. In my
judgment I should not reject the wider approach of those
common law cases in favour of the narrower one adopted by the
courts of Belgrade and Montenegro. …
[emphasis in original omitted; emphasis added in italics]
86 Nevertheless, the court also considered that the extraordinary

administration of Agrokor DD could only be commenced on grounds of
insolvency or impending insolvency, whether proved or deemed (at [68]), and
48
that there was evidence that Agrokor DD was in a state of serious financial
distress (at [69]).
87 It appears to us, based on these cases, that to this point, the position in
the UK with respect to the interpretation of Art 2(i) of the UK Model Law is
broadly aligned with the US position. It is true that in these cases, the courts
have also considered the insolvency and/or financially distressed state of the
relevant companies. However, it seems to us that the most that can be said is
that where the proceedings can be opened on multiple grounds, only some of
which relate to insolvency, the proceedings would nonetheless clearly fall
within the scope of the UK Model Law if they were opened on an insolvency-
related ground or where an anticipation of insolvency might have influenced the
decision to open proceedings on some other ground (see Goode on Insolvency
Law at para 16-29). It is also apparent that in these cases, the inquiry into the
solvency of the company was not a necessary step in coming to a decision on
whether to accord recognition to the “foreign proceeding” under Art 2(i) of the
UK Model Law.
88 Against the weight of these cases, the High Court in Re Sturgeon

declined to follow the US position. In Re Sturgeon, a solvent Bermuda-
registered company (“Sturgeon Ltd”) was wound up in Bermuda on the just and
equitable ground under s 161(g) of the Bermuda Companies Act 1981 (the
“Bermuda Companies Act”). Notably, s 161(e) of the Bermuda Companies Act
provided that a company may be wound up if it is unable to pay its debts (see
Re Sturgeon at [9]). The liquidators obtained an ex parte order recognising the
Bermudan liquidation in the UK, and the applicant, a former director of the
company, applied to terminate the recognition order. An issue which the High
Court had to determine was whether the solvent liquidation of Sturgeon Ltd on
the just and equitable ground was a “foreign proceeding” within the meaning of
49
Art 2(i) of the UK Model Law. After undertaking a review of the Working
Group’s reports and preparatory papers, the High Court answered that question
in the negative. In arriving at that conclusion, the court observed that the
Working Group’s reports were focused on “the need to recognise and provide
relief upon recognition of foreign proceedings, that concerned debtors that
either could not pay their debts or were struggling to pay their debts and seeking
to reorganise” (Re Sturgeon at [70]). It was therefore thought to be contrary to
the purpose and object of the UNCITRAL Model Law to interpret “foreign
proceeding” as including proceedings that concerned solvent companies and
proceedings that have the purpose of producing a return to members and not
creditors (Re Sturgeon at [117]). The court criticised Re Betcorp as having made
a wrong turn by recognising as a foreign proceeding the liquidation of a
company which was neither insolvent nor in severe financial distress (see Re
Sturgeon at [121]).
89 With respect, we do not agree with the criticisms levelled in Re Sturgeon

against Re Betcorp. We accept, as we have already said, that the UNCITRAL
Model Law was primarily focused on companies that are insolvent or in severe
financial distress and was not drafted to deal specifically with solvent
companies. However, as we explained above at [55]–[63], we do not think that
it would be contrary to the purpose and object of the UNCITRAL Model Law
to extend the scope of the UNCITRAL Model Law to proceedings concerning
solvent companies. Indeed, as we have also explained at [64]–[68] above and as
we will explain at [97] below, there are good reasons for construing the
UNCITRAL Model Law as having this effect both as a matter of principle and
practicality.
50
The position in Australia
90 The position in Australia is also aligned with the position in the US. In
Re Chow Cho Poon (Private) Ltd (2011) 80 NSWLR 507 (SC, NSW), a
Singapore-incorporated company (“CCP”) was ordered to be wound up
pursuant to s 254(1)(i) of the Singapore Companies Act (Cap 50, 2006 Rev Ed)
(the “Companies Act 2006”) on the just and equitable ground. The Supreme
Court of New South Wales (“NSWSC”) acknowledged at [40] that intuitively,
the Singapore winding-up proceeding was not a proceeding “pursuant to a law
relating to insolvency” as it was not the inability of CCP to pay its debts as they
fell due that constituted the ground on which the Singapore court ordered that
the company be wound up. Nevertheless, the NSWSC, endorsing the
approaches taken in Re Stanford (HC), Re Stanford (CA), Re ABC Learning
Centres and Re Betcorp, went on to observe at [51]:
These English and American decisions point to a clear basis on

which the whole of the Singapore Companies Act or, at the least,
the whole of its winding up provisions might be classified as ‘a
law relating to insolvency’, even though the particular winding
up was ordered on the just and equitable ground alone and, so
far as this court has been told, without any finding (express or
implied) of insolvency. [emphasis added]
91 The NSWSC accordingly found that the winding up of CCP in

Singapore was a “foreign proceeding” under Art 2(a) of sch 1 to the Australian
Cross-Border Insolvency Act 2008 (Cth) (which is in pari materia with Art 2(i)
of the UK Model Law), without giving further consideration to whether CCP
was in fact insolvent or in financial distress.
The position in New Zealand
92 So too is the position in New Zealand broadly consistent with the US

position in that the solvent status of a company does not exclude proceedings
51
concerning that company from the scope of the Insolvency (Cross-Border) Act
2006 (NZ) (the “NZ Cross-Border Insolvency Act”). In ANZ National Bank Ltd
v Sheahan and Lock [2013] 1 NZLR 674 (“ANZ National Bank”), several
Australian companies were placed into liquidation by creditors’ resolutions. The
liquidation in Australia produced a surplus after all the creditors had been paid,
meaning that the Australian companies were solvent. The liquidators
subsequently applied under the NZ Cross-Border Insolvency Act for an order
that an employee of a bank which had financed the Australian companies attend
for examination and produce documents on matters relating to the Australian
companies. The bank opposed the application, arguing that the NZ Cross-
Border Insolvency Act was not intended for use by foreign representatives of a
solvent company. This submission was rejected by the Auckland High Court,
which observed at [104]:
… [W]hile the administration of the Australian liquidations

happens to have produced a surplus, it remains appropriate to
characterise the regime as a ‘collective … proceeding …
pursuant to a law relating to insolvency’. … The purpose [of a
winding up] is ‘to ensure that an orderly regime is imposed
upon all interested parties to that none of them individually
may enhance his position by exploiting some fortuitous
circumstance which may yield an unfair advantage …’
Practical concerns
93 Finally, we address the practical concerns that may arise if proceedings

concerning solvent companies were included within the scope of the SG Model
Law pursuant to the Broad Approach. This was alluded to by the Judge and by
the respondent.
94 The Judge observed that the Broad Approach “subordinates substance

entirely to form” because under the Broad Approach, any type of proceeding,
no matter how far removed it may be from any connection to insolvency, would
52
be a proceeding under a law relating to insolvency within the meaning of

Art 2(h) of the SG Model Law simply because that proceeding is commenced
under a provision which happens to be found in a statute which deals generally
with insolvency. The Judge raised as an example an applicant who has secured
relief under s 216(2)(c) of the Companies Act 2006 to commence civil
proceedings in the name of and on behalf of the company, noting the absurdity
of categorising such a proceeding as a “foreign proceeding” under Art 2(h)
simply because the Companies Act 2006 also contained provisions dealing with
corporate insolvency (see the GD at [59]–[61]). In our judgment, the Judge’s
concerns are adequately addressed by the safeguards present in the other
elements of Art 2(h). As the Judge noted at [62], and as was accepted by counsel
for the respondent during the hearing before us, proceedings conducted under
s 216 of the Companies Act 2006 would not be collective proceedings within
the meaning of Art 2(h) of the SG Model Law since such proceedings do not
deal with all of the company’s creditors collectively. We elaborate below at
[102]–[107] on the requirement that the foreign proceeding must be collective
and whether Ascentra’s Cayman Liquidation counts as such a proceeding. Aside
from this, we reiterate the point we have made at [29] above that there are at
least five criteria that must be met for a proceeding to come within Art 2(h).
Accordingly, the concern that any type of proceeding, no matter how
disconnected it may be from insolvency, may be brought into the ambit of
Art 2(h) seems to us to be somewhat overstated.
95 Relatedly, the respondent submits that adopting the Broad Approach

“open[s] [the] floodgates for recognition and assistance applications”, which
would allow solvent companies to take advantage of the SG Model Law and
create absurd outcomes. In particular, it is suggested that:
53
(a) The Broad Approach would result in an automatic moratorium

being granted to solvent companies if proceedings concerning such
companies are recognised as foreign main proceedings (see Art 20(1) of
the SG Model Law). However, there is no justification for providing a
moratorium to a solvent company, especially when doing so would
afford the company a shield against litigation that they would not
otherwise be entitled to.
(b) The recognition of a foreign proceeding as a foreign main

proceeding would give rise to a presumption of insolvency under Art 31
of the SG Model Law. This may lead to the absurd outcome where a
solvent company is presumed to be insolvent for the purpose of
commencing secondary proceedings under Singapore insolvency law,
and would allow the solvent company to sidestep legislative
requirements that would otherwise apply to it.
96 In our view, the policy concerns raised by the respondent are overstated.
In relation to the risk of a moratorium being granted to a solvent company,
Art 20(6) of the SG Model Law expressly provides that the court may, on the
application of the foreign representative or a person affected by the moratorium,
or of its own motion, modify or terminate such stay and suspension or any part
of it, either altogether or for a limited time, on such terms and conditions as the
court thinks fit. It is thus clear that the Singapore courts may recognise a foreign
proceeding as a foreign main proceeding without an accompanying moratorium
necessarily being maintained. This would prevent the legitimate claims of
creditors against a solvent company from being unfairly stymied. As to the
respondent’s argument regarding the presumption of insolvency, this can be
dealt with quickly. The presumption of insolvency in Art 31 of the SG Model
Law is expressly qualified by the words “[i]n the absence of evidence to the
54
contrary”. It is therefore inconceivable that a company which has been proved

to be solvent would nonetheless be able to invoke the presumption of insolvency
under Art 31 of the SG Model Law.
97 On the contrary, we agree with the appellants’ submission that imposing

a requirement that the subject company must be either insolvent or in severe
financial distress may introduce some measure of complexity at the recognition
stage. Assuming for the moment that the Judge was correct in holding that
recognition would only be granted to foreign proceedings involving insolvent
companies, and “insolvency” is to be determined having regard to the law of the
foreign State in which the foreign proceeding was commenced (see the GD at
[48]), that would require the Singapore court to determine whether the subject
company is insolvent or in severe financial distress under the law of the foreign
State. In other words, the applicant for recognition must be prepared, at the time
of presentation of the petition for recognition, to prove the insolvency or severe
financial distress of the subject company under the relevant foreign law. This
may require that in contested cases, evidence be adduced not only as to the
financial status of the company but conceivably as to foreign law (see Pacific
Recreation Pte Ltd v S Y Technology Inc and another appeal [2008] 2 SLR(R)
491 at [54]). In our view, introducing such requirements at the recognition stage
would be undesirable. On this, we agree with Mr Lee’s suggestion that a light
threshold should be imposed for recognition, which can then be tempered by
granting recognition or relief subject to the imposition of appropriate conditions.
Conclusion on the first issue
98 We are therefore satisfied that there is no requirement under the SG

Model Law for a company to be insolvent or in severe financial distress before
a proceeding concerning that company may be recognised as a foreign
55
proceeding under the SG Model Law. For this reason, we agree with the
appellants that the approach taken in Re Betcorp towards the interpretation of
the words “law relating to insolvency or adjustment of debt” (ie, the Broad
Approach) should be adopted in Singapore. Interpreting Art 2(h) of the SG
Model Law in that manner better coheres with its ordinary meaning and reflects
Parliament’s intention to include proceedings concerning solvent companies
within the scope of the SG Model Law. We are also satisfied that such an
interpretation does not undermine, and is indeed consistent with, the overall
purpose of the UNCITRAL Model Law.
99 To reiterate, under the Broad Approach, the requirement that a

proceeding be conducted “under a law relating to insolvency or adjustment of
debt” within the meaning of Art 2(h) will be satisfied as long as the law or the
relevant part of the law under which the relevant proceeding is conducted
includes provisions dealing with the insolvency of a company or the adjustment
of its debts. It will generally be irrelevant that the company concerned in the
relevant proceeding is not insolvent or in severe financial distress.
100 We turn to consider whether Ascentra’s Cayman Liquidation is a

proceeding being conducted under a law relating to insolvency or adjustment of
debt for the purposes of Art 2(h) of the SG Model Law. Ascentra’s Cayman
Liquidation had begun as a voluntary winding up commenced pursuant to a
shareholders’ resolution, the requirements of which are prescribed by s 116(c)
of the Cayman Act. That provides that a company may be wound up voluntarily
if it so resolves by special resolution. Ascentra’s Cayman Liquidation was
subsequently brought under the supervision of the Cayman Grand Court
pursuant to s 124(1) of the Cayman Act (see [8] above).
56
101 Both ss 116(c) and 124(1) of the Cayman Act are contained within
Part V of the Cayman Act, titled “Winding up of Companies and Associations”.
Part V of the Cayman Act also contains other provisions that indisputably deal
with the insolvency or adjustment of debt of a company. For instance, s 92 of
the Cayman Act sets out the circumstances in which a company may be wound
up by the court, which includes the situation where the company is unable to
pay its debts (see s 92(d) of the Cayman Act). The Cayman Act also contains
provisions dealing with arrangements and reconstructions. Section 86 of the
Cayman Act provides that the company may compromise with its creditors and
members, while s 87 of the Cayman Act sets out provisions for facilitating the
reconstruction and amalgamation of companies. Applying the approach set out
at [98] and [99] above, we are satisfied that the Cayman Act is a law relating to
insolvency or adjustment of debt. It follows that Ascentra’s Cayman
Liquidation, which is being conducted pursuant to provisions of the Cayman
Act, is a proceeding being conducted under a law relating to insolvency or
adjustment of debt for the purposes of Art 2(h) of the SG Model Law.
Whether Ascentra’s Cayman Liquidation is a collective proceeding
102 The next issue is whether Ascentra’s Cayman Liquidation is a collective

proceeding within the meaning of Art 2(h) of the SG Model Law. Before the
Judge, the parties accepted and proceeded on the basis that the Cayman
proceeding was a collective proceeding. It is therefore not surprising that this
point was not pursued by the respondent in its written submissions. However,
during the hearing before us, Mr Kumar took a different stance and informed us
that the respondent was not prepared to concede that Ascentra’s Cayman
Liquidation is a collective proceeding. Mr Lee did not object to Mr Kumar’s
withdrawal of his earlier concession.
57
103 The respondent’s argument in this regard is contingent on its argument

that Parliament did not intend for the SG Model Law to extend to proceedings
involving solvent companies. However, for the reasons we have explained at
[37]–[46] above, it is clear to us that Parliament had in fact modified Art 2(h)
the SG Model Law to include proceedings concerning solvent companies within
the scope of the SG Model Law.
104 In any event, the respondent has not pointed to any authority or material
which suggests that a proceeding such as the present is not a collective
proceeding for the purposes of the UNCITRAL Model Law just because it
concerns a solvent company. The relevant principles and authorities concerning
the requirement of a proceeding being collective were set out by this court in
United Securities at [55]–[62] and may be summarised as follows:
(a) For a proceeding to be collective, it must concern all creditors of

the debtor generally, in contrast to, for instance, one that is instigated at
the request, and for the benefit, of a single secured creditor (Cross-
Border Insolvency: A Commentary on the UNCITRAL Model Law (Look
Chan Ho gen ed) (Globe Law and Business Publishing, 4th Ed, 2017) at
p 178).
(b) In evaluating whether a proceeding is collective, a key

consideration is whether substantially all of the assets and liabilities of
the debtor are dealt with in the proceeding, subject to local priorities and
statutory exceptions, and to local exclusions relating to the rights of
secured creditors (2013 Guide, part two at para 70).
105 In Re Betcorp, the US Bankruptcy Court similarly observed that a

collective proceeding is one which considers the rights and obligations of all
58
creditors. On that basis, the US court held that the voluntary liquidation of
Betcorp in Australia was a collective proceeding (Re Betcorp at 281). Re
Betcorp may be contrasted with Re Global Cord, where the Cayman Grand
Court appointed Joint Provisional Liquidators (“JPLs”) as fiduciaries to, among
other things, investigate and potentially recover allegedly misappropriated
corporate funds. The JPLs sought recognition of the proceedings under
Chapter 15 of the US Bankruptcy Code. The US court refused recognition,
finding that the Cayman proceeding was not a collective proceeding because it
did not involve all of the creditors of the company, which is the “main
definitional hallmark” of a collective proceeding within meaning of s 101(23)
of the US Bankruptcy Code (Re Global Cord at 7–9).
106 Applying these principles to the present case, we are satisfied that
Ascentra’s Cayman Liquidation is a collective proceeding within the meaning
of Art 2(h) of the SG Model Law. Ascentra’s Cayman Liquidation is subject to
various provisions in the Cayman Act that are concerned generally with the
rights of all of Ascentra’s creditors. For instance, ss 140(1) and 140(2) of the
Cayman Act provide:
Distribution of the company’s property

140. (1) Subject to subsection (2), the property of the company
shall be applied in satisfaction of its liabilities pari passu and
subject thereto shall be distributed amongst the members
according to their rights and interests in the company.
(2) The collection in and application of the property of the
company referred to in subsection (1) is without prejudice to
and after taking into account and giving effect to the rights of
preferred and secured creditors and to any agreement between
the company and any creditors that the claims of such creditors
shall be subordinated or otherwise deferred to the claims of any
other creditors and to any contractual rights of set-off or netting
of claims between the company and any person or persons
(including without limitation any bilateral or any multi-lateral
set-off or netting arrangements between the company and any
59
person or persons) and subject to any agreement between the

company and any person or persons to waive or limit the same.
107 Moreover, the Liquidators were appointed by the Cayman Grand Court
as the joint official liquidators of Ascentra. In this connection, ss 110(1)(a) and
110(1)(b) of the Cayman Act prescribe that the function of an official liquidator
is to: (a) collect, realise and distribute the assets of the company to its creditors
and, if there is a surplus, to the persons entitled to it; and (b) report to the
company’s creditors and contributories upon the affairs of the company and the
manner in which it has been wound up. In the premises, we are satisfied that the
voluntary liquidation of Ascentra is one which concerns all of Ascentra’s
creditors generally and therefore qualifies as a collective proceeding under
Art 2(h) of the SG Model Law.
Whether Ascentra’s Cayman Liquidation is being conducted for the

purpose of reorganisation or liquidation
108 We deal next with the respondent’s contention that Ascentra’s Cayman
Liquidation is not being conducted for the purpose of reorganisation or
liquidation within the meaning of Art 2(h) of the SG Model Law. The
respondent chiefly relies on para 35 of part one of the Legislative Guide (which
is a document intended by the UNCITRAL to be used as a reference by national
authorities and legislative bodies when preparing or reviewing laws and
regulations which address the financial difficulty of debtors):
35. There are a number of legal and economic justifications

for liquidation. Broadly speaking, it can be argued that a
commercial business that is unable to compete in a market
economy should be removed from the marketplace. A principal
identifying mark of an uncompetitive business is one that
satisfies one of the tests of insolvency, that is, it is unable to
meet its mature debts as they become due or its debts exceed
its assets. More specifically, the need for liquidation
proceedings can be viewed as addressing inter-creditor
problems (when an insolvent debtor’s assets are insufficient to
60
meet the claims of all creditors it will be in a creditor’s own best

interests to take action to recover its claim before other
creditors can take similar action) and as a disciplinary force
that is an essential element of a sustainable debtor-creditor
relationship. …
On this basis, the respondent argues that “liquidation” within the meaning of the
UNCITRAL Model Law was intended to refer to insolvent liquidation, and
Ascentra’s solvent liquidation therefore did not satisfy this requirement.
109 For the reasons set out at [37]–[99] above, we have concluded that the
SG Model Law extends to the recognition of foreign proceedings concerning
solvent companies. That being the case, interpreting the word “liquidation” in
Art 2(h) as being limited to insolvent liquidations, as the respondent suggests,
would be incompatible with our conclusion.
110 In any event, we do not accept the respondent’s submission that the
passage from the Legislative Guide that we have reproduced above shows that
the UNCITRAL Model Law was intended to be limited to proceedings
concerning insolvent liquidations. The passage in the Legislative Guide relied
upon by the respondent states that one of the justifications for liquidating a
company is its inability to compete in a market economy, which is evidenced
by its insolvency. As the appellants rightly point out, that passage does not deal
specifically with the UNCITRAL Model Law, let alone state that the word
“liquidation” in Art 2(a) of the UNCITRAL Model Law was intended to refer
only to insolvent liquidations.
111 In the premises, we hold that Ascentra’s Cayman Liquidation was

conducted for the purpose of liquidation within the meaning of Art 2(h) of the
SG Model Law.
61
Whether the Singapore courts have jurisdiction to recognise Ascentra’s

Cayman Liquidation
112 Finally, we turn to consider whether the Singapore courts have

jurisdiction to recognise Ascentra’s Cayman Liquidation. Pursuant to
Art 4(2)(a)(ii) of the SG Model Law, such jurisdiction will be established if the
debtor has property situated in Singapore. Section 2(1) of the IRDA defines
“property” broadly as: (a) money, goods, things in action, land and every
description of property, wherever situated; and (b) obligations and every
description of interest, whether present or future or vested or contingent, arising
out of or incidental to property.
113 The appellants submit that the following constitute property situated in
Singapore within the meaning of Art 4(2)(a)(ii) of the SG Model Law: (a) legal
and/or equitable claims against the respondent and Scuderia Bianco; (b) retainer
fees paid to its solicitors; and (c) shares in a Singapore-incorporated company,
Interush (Singapore) Pte Ltd (“Interush”), which are held by Ascentra. The
respondent does not dispute that Ascentra holds shares in Interush, nor that such
shares constitute property situated in Singapore. Indeed, the respondent appears
to have conceded in its submissions in the proceedings below that Ascentra’s
shares in Interush constitute property for the purposes of Art 4(2)(a)(ii) of the
SG Model Law. That alone suffices to found jurisdiction in Singapore to
recognise Ascentra’s Cayman Liquidation under Art 17 of the SG Model Law.
In the circumstances, it is unnecessary for us to determine whether Ascentra’s
legal and/or equitable claims against the respondent and Scuderia Bianco and/or
the legal fees paid by Ascentra to its solicitors also constitute property within
the meaning of Art 4(2)(a)(ii) of the SG Model Law.
62
Conclusion
114 For these reasons, we are satisfied that Ascentra’s Cayman Liquidation
qualifies as a “foreign proceeding” within the meaning of Art 2(h) of the SG
Model Law. In particular, we are satisfied that Ascentra’s Cayman Liquidation:
(a) is a collective proceeding; (b) is being conducted under a law relating to
insolvency or adjustment of debt; and (c) has as its purpose the liquidation of
Ascentra. In addition, we are satisfied that we have jurisdiction to recognise
Ascentra’s Cayman Liquidation pursuant to Art 4(2)(a)(ii) of the SG Model
Law.
115 As we have found the requirements for recognition under Art 17 of the
SG Model Law to be fulfilled, we are obliged to recognise Ascentra’s Cayman
Liquidation as a foreign main proceeding in Singapore under Art 17 of the SG
Model Law (see [27] above). We therefore allow the present appeal. However,
we will hear the parties on the question of whether the recognition of Ascentra’s
Cayman Liquidation should be made subject to any conditions and give
permission to the parties to make submissions on this within 14 days of the date
of this judgment if they wish to seek the imposition of any conditions. If this is
sought by either party, then the other party shall have 14 days to respond.
116 We award costs to the appellants fixed at $60,000 (inclusive of

disbursements), this reflecting the position of both parties in their costs
63
submissions as to the appropriate quantum of costs. The usual consequential

orders are to apply.
Sundaresh Menon Steven Chong

Chief Justice Justice of the Court of Appeal
Belinda Ang Saw Ean

Justice of the Court of Appeal
Lee Eng Beng SC and Yeo En Fei Walter (Rajah & Tann Singapore
LLP) (instructed), Han Guangyuan Keith and Angela Phoon Yan
Ling (Oon & Bazul LLP) for the appellants;
Balakrishnan Ashok Kumar, Gloria Chan Hui En, Stanley Tan Sing
Yee and Shreya Prakash (BlackOak LLC) for the respondent.
64

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IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE

Court of Appeal / Civil Appeal No 23 of 2022

(1) Ascentra Holdings, Inc (in

SPGK Pte Ltd

In the matter of Originating Summons No 16 of 2022

(1) Ascentra Holdings, Inc (In

SPGK Pte Ltd

Ascentra Holdings, Inc (in official liquidation) and others

Court of Appeal — Civil Appeal No 23 of 2022

18 October 2023 Judgment reserved.

Sundaresh Menon CJ (delivering the judgment of the court):

2 The present appeal raises the important question of whether the SG

liquidation proceedings concerning solvent companies. This question must be

3 We begin by recounting the facts. The first appellant is Ascentra

5 The respondent is SPGK Pte Ltd, a company incorporated in Singapore,

Background to the dispute

6 Ascentra’s ultimate beneficial shareholders are seven natural persons.

7 Pursuant to s 124(1) of the Cayman Act and O 15 r 1 of the Cayman

8 On 17 September 2021, the Cayman Grand Court allowed

(a) the liquidation of Ascentra be continued under the supervision

(b) Mr Robinson and Ms Chua be appointed as the joint official

9 On 23 September 2021, the Liquidators filed a certificate in the Cayman

JOINT OFFICIAL LIQUIDATORS’ CERTIFICATE

10 On 14 October 2021, in a letter addressed to Ascentra’s shareholders,

11 On 6 January 2022, the appellants filed OS 16 pursuant to Art 15 of the

(a) an order recognising Ascentra’s liquidation in the Cayman

(b) an order recognising the Liquidators as “foreign representatives”

(c) an order granting the Liquidators such powers in relation to

The decision below

14 The Judge first separately interpreted the words “insolvency”, “law”

(a) The proper characterisation of a “foreign proceeding” under

(c) The appellants’ submission that a law “relating to” insolvency is

15 The Judge then considered the phrase “under a law relating to

16 As to the relevant case law, the Judge observed as follows:

(a) The Court of Appeal in United Securities Sdn Bhd (in

(“Re Sturgeon”) that it would be contrary to the UNCITRAL Model

17 The Judge accordingly held that Ascentra’s Cayman Liquidation is not

The parties’ cases on appeal

The appellants’ case

18 In relation to the ordinary meaning of Art 2(h) of the SG Model Law,

being corporate reorganisations) which are not limited to insolvent companies.

21 The appellants further highlight that allowing the recognition of

22 In addition, the appellants also submit that the introduction of a

The respondent’s case

23 The respondent, on the other hand, submits that Ascentra’s Cayman

(a) A “foreign proceeding” under Art 2(h) refers only to proceedings

(b) The UNCITRAL Legislative Guide on Insolvency Law (2004)

(c) Re Sturgeon was correctly decided by the UK court and is not an

(d) Re Betcorp should not be followed as it was wrongly decided

(e) The approach suggested by the appellants would “open [the]

24 Mr Kumar accordingly contends that Ascentra’s Cayman Liquidation,

to be recognised under the SG Model Law, the discretionary reliefs sought by

General principles and issues to be determined

27 Pursuant to Art 15(1) of the SG Model Law, a foreign representative

Article 17. Decision to recognise a foreign proceeding

(h) “foreign proceeding” means a collective judicial or

(a) First, that proceeding must be collective in nature.

(b) Second, that proceeding must be a judicial or administrative

(c) Third, that proceeding must be conducted under a law relating to