Local proceedings in a multi-state liquidation: issues of jurisdiction

Abstract

Following a brief description of multi-state insolvency theories and the different types of jurisdiction exercisable by a court, this paper examines jurisdiction in corporate insolvency within Australia. It begins with the constitutional context and then addresses geographical jurisdiction; jurisdiction to prescribe conduct, and jurisdiction to adjudicate between parties. It briefly touches upon the notion of an inherent jurisdiction to adjudicate in liquidation and on jurisdiction for proceedings during the course of, rather than on the adjudication of, a liquidation. The discussion on jurisdiction to adjudicate in a multi-state liquidation in Australia addresses winding up of a foreign company under Part 5.7 of the Corporations Act 2001 (Cth) as well as topics such as forum non conveniens; lis alibi pendens; anti-suit injunctions; and the notion of discretion to exercise jurisdiction to wind up a company. The jurisdiction to provide aid and auxiliary assistance upon request from a foreign court is also touched upon briefly.