NCBJ’s Evolving Role in Pursuit of the International Rule of Commercial Law

By: Mary Jo Heston (W.D. Wash.), Co-chair of NCBJ International Committee.[1]

NCBJ members have long been committed to the development of international commercial laws, and this is an important part of NCBJ’s role and history. Since the 1980s, several bankruptcy judges have worked extensively with international judges and governments under the auspices of USAID, the Department of Commerce, the World Bank, UNCITRAL, and other governmental and private international organizations to improve the rule of law. The contributions of these judges are important and honored today through the Mike G. Williamson International Rule of Law Award (the “Williamson Award”), which is given bi-annually with the next award to be made in 2027. This work, however, is but a small part of NCBJ International Committee’s (the Committee) current role within the international commercial arena.

The current goals of the Committee were substantially revised in 2023 following the Committee’s Recommendations and Report to the NCBJ Board of Governors which I prepared at the request of the 2022-23 NCBJ President, Dan Collins. (See the “2023 Report”) The reasons for the Committee’s shift of focus included the lack of funding for international work, the significant growth and involvement of international insolvency organizations such as INSOL and the International Insolvency Institute (III) in education on cross-border and international insolvency laws, and the Committee’s lack of relevance to the general NCBJ membership.

The primary purpose of the Committee’s shift in goals and priorities is to expand the reach of the Committee’s work and involvement beyond the small group of bankruptcy judges who either have the time, money, inclination, and connections to travel overseas or are extensively involved in overseeing large cross-border bankruptcy cases because of venue choice to a broader group of bankruptcy judges who have an interest in international work and the development of the international rule of law. Thus, as the 2023 Report stated, the Committee’s work should focus “on expanding and sharing the many skills of our colleagues with international judges, governments and professionals in a wider variety of areas, including mediation, case management, small business, consumer issues, and helping international aid and educational organizations identify skills with needs.” (2023 Report at p.5.)

An example of the Committee’s broader focus is its project to prepare insolvency law summaries for FJC International under the supervision of its director Mira Gur Aurie, which will be added to the FJC’s Judiciaries Worldwide website. The JW Website, which provides general overviews of several countries’ judicial systems for lawyers, judges, government entities, and other professionals, historically had no information on foreign insolvency laws.  We have prepared a general summary as well as several country summaries, which are under review. We will soon be looking for volunteers to assist in the preparation of additional summaries.

The Committee has continued to develop and shepherd an international program at each NCBJ Annual Conference, often in collaboration with one or more education focused insolvency groups such as ACB’s International Committee, III, and INSOL. Recently selected topics have focused on laws of interest based on the Conference location (e.g., Canada in Seattle, and Mexico in San Diego, “Tension at the Border; It’s Not Just the Wall,” scheduled for October 9th at 10:15 a.m.) or on topics of interest to a broad bankruptcy constituency (e.g., international asset tracing).  The Committee is currently in the process of expanding its collaboration with INSOL to provide webinars of interest to our members. We plan on holding a webinar in the winter of 2027 with judges from another jurisdiction on a topic of general interest such as use of ADR to resolve disputes. In the interim, we are working with Tom Horan (D. Del) on a series of joint webinars with INSOL providing updates on cross-border issues of interest. The Committee, which includes the bankruptcy member of JCUS International Committee (currently Katharine Samson (N.D. Miss), also regularly gets updates on their projects and needs. These collaborations leverage NCBJ’s resources to maximize the reach and benefits of the programming.

Finally, the Committee has increased its articles in the NCBJ Conference news with several Committee members contributing articles on international events and topics (e.g., use of early neutral evaluation tools to resolve disputes). We intend to expand the articles to include more regular updates on the Committee and its members’ involvement in international insolvency matters.

In conclusion, are you someone with an interest in international law? Do you have suggestions for the Committee on how to improve its work on behalf of NCBJ members? If so, please contact Mychal or me.

[1] Mychal Bruggeman (D. Minn.) is co-chair of the Committee.