The International Committee’s ‘Silver Lining’ in a Worldwide Pandemic: The COVID-19 Project for GlobalInsolvency.com

The term “silver lining” comes from Milton’s Comus, in which the silver lining is the light of the moon shining behind a cloud.[2] It is very difficult to find a silver lining in the COVID-19 pandemic, which has caused more than 500,000 deaths in the U.S. and 2.4 million deaths worldwide.[3] There have been some positives in how people have come together to address the crisis, and to adapt and adjust to the conditions created by the crisis. Members of the ABI International Committee, over 30 professionals, worked individually to report on 19 different jurisdictions. They answered the call to create a template for the analysis, focused on each jurisdiction, and created an analysis of individual measures undertaken by the various countries in a comparative law format.

This effort was a “silver lining” for both the international committee and ABI, because it became one of the first International Committee member-wide efforts to add significant, relevant and timely content to the global insolvency website (globalinsolvency.com). The participation level and the variety of jurisdictions and legal traditions was impressive. Not only did the committee help add critical content to ABI, it provided a wonderful opportunity for committee members from around the world to actively contribute to a project. This was especially important to a committee where many of its members cannot participate at in-person conferences. In many ways, the pandemic provided opportunity both because of the subject matter and the necessity to work together virtually to bridge the distance between committee members and ABI.

The resulting project, which can be found at globalinsolvency.com, is a comprehensive schematic summarizing the macro- and micro-economic efforts in response to COVID-19. The countries featured include Canada, Cayman Islands, Chile, France, Germany, Channel Islands (Guernsey), Channel Islands (Jersey), Hong Kong, India, Italy, Mexico, Netherlands, Russia, Singapore, Spain, the U.K. and the U.S. Patrick Shea, Adam Swick and Olya Antle, with tremendous support from paralegals Ashli Durke and Courtney Snyder, helped me coordinate, manage and edit the hard work of Andrew Thorp (British Virgin Islands); Michael J. Hanlon, Antoine Leduc and Robin B. Schwill (Canada); Adam Crane and Andrew Thorp (Cayman Islands); Camila Beltran, Ricardo Reveco and Isaac Stevens (Chile); Alexandre Le Ninivin and Anaïs Karapetian (France); Annerose Tashiro, Jelena Schidzig and Stuart Weinstein (Germany); Alasdair Davidson (Channel Islands (Guernsey); Ian De Witt (Hong Kong); Dr. Risham Garg and Adam Nach (India); Chiara Fiorini and Alessandro Honert (Italy); Edward Drummond and Dinarte Moura (Channel Islands (Jersey)); William F. Stutts (Mexico); Netherlands (Jochem Hummelen); Olya Antle (Russia); Laura Hatfield (Singapore); José Carles and Rubén García-Quismondo Pereda (Spain); Jason Corbett (Thailand); Mark Fennessy, Jamie Lester, Grace Nisbet, Marc Trottier and Ian Williams (U.K.); and Seth R. Freeman, Richard Mikels, Shirley Palumbo, Jelena Schidzig, R. Adam Swick, Donald Workman, Rafael X. Zahralddin-Aravena and Evan Zucker (U.S.).

The project chronicled fiscal measures, such as budget allocations; tax measures, including deferral of payment of taxes; subsidies to preserve jobs, benefits and food assistance; public loan guarantees and expansions of business loans; student loan relief; and insolvency law relief. Monetary and macro-financial measures were also examined, including interest rate reductions; expansion of central banks’ holdings of government bonds; measures to support the flow of credit; suspension of foreclosures/evictions; reductions/suspensions of mortgage payments; asset purchases (liquidity facilities; purchase of private and public sector securities, acquiring equity of larger affected companies); and exchange-rate adjustments. Health policy restrictions were also canvassed, including social distancing, closures of public places, nonessential businesses and school closures. Finally, global cooperation initiatives, whether truly global or regional, were noted, as were any other measures related to the administration of justice.

Another “silver lining” coming out of this project was that committee members wrote an article in the ABI Journal[4] and participated in a panel at the International Insolvency Forum 2020 on COVID-19 responses. Both of these efforts built upon work done in the project and drilled down into these topics, as well as updated in more detail the materials that had been reported on in the project.

One effect of the COVID-19 pandemic on legal systems around the world is that common law jurisdictions (such as the U.S.) and civil law jurisdictions (such as Quebec and France) are being forced to accelerate the move toward electronic signatures, electronic filings and remote notarizations. The novel coronavirus has altered the way that legal professionals practice law across the globe, as courts in both the common law and civil law traditions have had to modify the administration of law to do their part to enforce health restrictions. Many courts closed, then reopened primarily virtually, as their services were deemed “essential” functions in many jurisdictions; others did not, and in those jurisdictions critical functions were simply postponed for months. Many jurisdictions were able to quickly adapt, as some modernization efforts had already been underway long before the COVID-19 pandemic. The article discussed U.N. reports that 145 countries across the globe had adopted laws to facilitate electronic transactions, and that this global proliferation of electronic transactions was a welcome avenue for relief when in-person transactions were suspended or postponed during the pandemic. Particular focus was put on the movement toward digitized records, electronic filings and e-signatures: Canada adopted the Uniform Electronic Commerce Act in 1998, and the U.S. has recognized electronic transactions, including smart contracts and electronic signatures, through the U.S. Electronic Signatures in Global and National Commerce (ESIGN Act), passed in 2000, as well as the Uniform Electronic Transactions Act, released in 1999. The article also examined the issue of notarizations, including the critical importance that a notary plays in civil law countries. Even before the pandemic, a number of states in the U.S. permitted electronic notarizations or e-notarizations, which involve the notarization of electronic signatures on documents in electronic format.

ABI partnered with the International Insolvency Institute, American College of Bankruptcy, TMA Europe, INSOL International and IWIRC to present the program. I moderated a panel titled “Addressing COVID: Local Reactions to a Global Pandemic,” which included panelists Adam Crane (Cayman Islands), Ian De Witt (Hong Kong), Alexandre Le Ninivin (France), Dr. Wenli Li (Federal Reserve Bank of Philadelphia; Philadelphia, Pa., USA), Ricardo Reveco (Chile) and Dr. Li, an economist with the Federal Reserve Bank in Philadelphia. We started the session with summary of the macro-economic conditions during the pandemic and potential areas to watch as the global and U.S. economy were moving toward the next stages of the crisis and potential recovery. The other panelists focused on jurisdiction and regional reports, as well as insolvency-related legislation and trends within those countries and regions. The panel was able to provide a retrospective on the measures that had been taken early in the pandemic up through the time the panel was presented in November 2020.

There are continuing opportunities to update the Global Insolvency COVID-19 project with new jurisdictions and updates on the pandemic for the current highlighted countries. There also is a wealth of topics to discuss in articles, whether published in the ABI Journal or in the ABI International Committee newsletter. The success of this project is also a harbinger of future projects and participation, so perhaps the real “silver lining” is that the COVID-19 project has demonstrated that we don’t have to wait for a pandemic to rally the talent we have in ABI’s International Committee to do meaningful work that assists in our contribution to the worldwide insolvency practice and professional development of our members, no matter where they are in the world.