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Dissertations / Theses on the topic 'Cross-border insolvency'
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1
Weyulu, Victoria. "The Reform of Namibia’s Cross-Border Insolvency Framework." Thesis, University of the Western Cape, 2015. http://hdl.handle.net/11394/4773.
Full textAbstract:
Magister Legum - LLMThis paper argues that there is a need for an improved cross-border insolvency regime as the common law principles applied in Namibia are outdated and thus ill-equipped to deal with present-day complex issues of cross-border insolvency. The lack of literature on issues of crossborder insolvency belies the importance of cross-border insolvency in African developing countries like Namibia who seek to encourage trade and investment in the hope of achieving economic development. In the final section of chapter one, the paper will consider the Model Law as the basis needed to develop clear, fair and predictable rules to effectively deal with the various aspects of cross-border insolvencies in Namibia.
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Wang, Bingdao. "Cross-border insolvency law in China and Hong Kong : a critical analysis based on the UNCITRAL model law on cross-border insolvency." Thesis, University of Leeds, 2018. http://etheses.whiterose.ac.uk/21370/.
Full textAbstract:
This thesis discusses what features and advantages of the Model Law regime that Chinese law could learn to improve the Chinese cross-border insolvency system at both international and regional levels. Cross-border insolvency is one inevitable consequence of the globalisation of business activity. For solving transnational insolvencies, there is a clash of competing national laws on issues, including the recognition of foreign claims, the process related to the distribution of assets, and different policy preferences for protecting different groups of creditors. The ongoing trend of harmonising cross-border insolvency laws has been actively promoted by the UNCITRAL Model Law on Cross-Border Insolvency. The Model Law was developed based on the principle of modified universalism, and its soft law nature aims to assist national insolvency laws and facilitate recognition of foreign proceedings. Although the interpretation of the law in enacting countries can be different, the thesis concludes that the Model Law can interconnect individual insolvency proceedings in an orderly and effective manner through its main features such as the centre of main interests (COMI) and cooperation and communication. Cross-border insolvency rules in China are conservative, and the only relevant article (article 5 EBL 2006) sets the basic recognition rules, which have a restrictive application, based on the principle of reciprocity and bilateral agreements. However, after reviewing relevant Chinese laws for dealing with international matters, the thesis finds that there are legal concepts under the Chinese commercial law system sharing similarities with the Model Law system, which provide legal potential for China to adopt a modified universalism approach, and this study also argues that adopting COMI could be a good start to improving Chinese international insolvency law. As China includes various jurisdictions, this research also focuses on Hong Kong because of its legal and financial significance. Although Hong Kong has not developed statutory international insolvency law, there is a flexible common law approach, which can achieve similar results as the Model Law system. The interregional insolvency within China is a dilemma between treating cases from other regions (such as Hong Kong) as foreign matters and politically highlighting such matters as national matters. This thesis argues that the close political and economic connections between the mainland and Hong Kong require an effective interregional insolvency recognition regime and transplanting the Model Law regime into a regional context, applying a COMI-based recognition approach, could be a workable system.
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Veder, Paul Michael. "Cross-border insolvency proceedings and security rights : a comparison of Dutch and German law, the EC insolvency regulation and the UNCITRAL model law on cross-border insolvency /." Utrecht : Kluwer legal publ, 2004. http://catalogue.bnf.fr/ark:/12148/cb41063898b.
Full textAbstract:
Texte remanié de: Proefschrift--Radboud Universiteit Nijmegen, 2004.EC = European communauty, UNCITRAL = United Nations. Commission on international trade law. Résumé en néerlandais. Bibliogr. p. 449-468.
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El, Borai Rami. "Cross-border corporate insolvency : a modest proposal for an enhanced international approach." Thesis, Queen Mary, University of London, 2006. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1882.
Full textAbstract:
The ongoing process of globalisation has witnessed an increase in cross-border corporate insolvencies involving multinational enterprises (MNEs). Yet, national insolvency laws have proven themselves ill-equipped to handle such matters in an international setting. Responsible policy-makers and academics argue for the creation of a viable international insolvency approach. This debate has revolved around an "either-or" spectrum of (1) the theory of "Universality" that proposes a single court charged with implementing a single bankruptcy law to worldwide claimants, and (2) the theory of "Territoriality" that asserts each jurisdiction can only adjudicate the debtor's insolvency on a territorial basis and distribute local assets to local claimants. But, this debate yet has yielded no practical solution. This thesis suggests that these two theories are not mutually exclusive, and both may be utilized in developing a pragmatic and "better" international insolvency framework. To date, there has been one non-binding international instrument based on moderate choice of forum/law provisions: the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law). Although the Model Law has significant merits, it falls short of the broader expectations minimally acceptable international insolvency system should fulfill. In addition, the regional European Union Council Regulation on Insolvency Proceedings (the Regulation) has recently been enacted. This thesis will argue that, while recognizing the special sui generic nature of the EU framework, important lessons can be learned from this Regulation, and when combined with certain elements from a revamped Model Law approach, a "better" international insolvency framework may be found. The concluding observations of this thesis will touch upon a range of existing international vehicles that may be complementary or alternative vehicles to channel interim reforms. Unless otherwise expressly indicated, this thesis speaks as of 1 January 2006.
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Almaskari, Bader Juma. "Towards legal certainty : European cross-border insolvency law and multinational corporate groups." Thesis, University of Leicester, 2017. http://hdl.handle.net/2381/39163.
Full textAbstract:
The proliferation of multinational company groups in global trade brings new challenges to cross-border insolvency and subjects creditors to an excessive amount of legal uncertainty, which may put them at a disadvantage. This Thesis examines the extent to which European insolvency regulations, namely, the European Insolvency Regulation 2000 (EIR 2000) and the Recast European Insolvency Regulation 2015 (New Recast EIR 2015) enhance legal certainty and reduce the opportunity for abusive forum shopping, to the benefit of creditors in cross-border insolvency cases of multinational company groups. This Thesis provides an original approach to analysing this problem by first examining the issue from a company law perspective and a conflict of laws perspective. The Thesis then critically examines the EIR 2000 and demonstrates that the notion of the Centre of Main Interest (COMI) on its own is not capable of providing a satisfactory solution to the problem of the lack of legal certainty, especially as the regulation and the jurisprudence of the courts do not greatly help in adding more certainty to the meaning of the COMI. This is followed by examining proposals for enhancing legal certainty outside the EIR 2000, before critically examining the New Recast EIR 2015 by analysing the new provisions on secondary proceedings, the clarifications of the notion of the COMI, and the new chapter on groups. The Thesis concludes by acknowledging that the New Recast EIR 2015 has filled many of the gaps of the EIR 2000 and contributed to enhancing legal certainty in the cross-border insolvency of Multinational Corporate Groups (MCGs) for the benefit of creditors, but there is still room for improvement, especially as many of the tools found in the New Recast EIR 2015 are voluntary in nature. The concluding chapter ends by identifying new areas of potential research in this field.
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Gagnon, Hugo-Pierre. "Bill C-55 and the UNCITRAL model law on cross-border insolvency : the harmonization of Canadian insolvency legislation." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101817.
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Bill C-55 proposes amendments to the Canadian Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act tailored on the procedural framework contemplated by the UNCITRAL Model Law on Cross-Border Insolvency. This thesis demonstrates that implementation of these amendments will bring Canadian insolvency law into closer---but by no means complete---alignment with the doctrine of modified universalism reflected in the Model Law. To this end, the thesis undertakes an analysis of the different theoretical approaches to cross-border insolvency, shows the importance of instrument choice in determining the level of global harmonization attained, and reviews recent projects of harmonization. This is followed by a close comparative analysis of the extent of compliance of the provisions of Bill C-55 with the Model Law, an analysis that demonstrates the shortcomings of model laws and, somewhat paradoxically, their important role and function in eventually bringing about global legal harmonization.
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Fourie, Etienne Gerhard. "'n Vergelyking van die oorgrens-insolvensiewetgewing van Suid-Afrika met die van die Verenigde State van Amerika / Etienne Gerhard Fourie." Thesis, North-West University, 2012. http://hdl.handle.net/10394/8696.
Full textAbstract:
Due to economic globalisation and integration, as well as the global economic downturn since 2008, the appearance of cross-border insolvencies have increased dramatically. This increase in cross-border insolvencies has led to a demand for a general and fair system to administer cross-border insolvencies globally. In 1997 United Nations Commission on International Trade Law (UNCITRAL) promulgated the Model Law on Cross-Border Insolvency to act as an aide to countries in globally administering cross-border insolvencies in a uniform way. South Africa, and the United States of America (USA), subsequently accepted this Model Law approach into their respective national legislation. South Africa did this through the Cross-Border Insolvency Act 42 of 2000 (CBIA) and the USA by way of Chapter 15 of the United States Bankruptcy Code. The CBIA is, however, not currently in operation as the Minister of Justice has not yet designated countries to which the CBIA will apply. Chapter 15 is, however, effective and operational in the USA.
The two theories that underlie cross-border insolvencies – universalism and territorialism – have been further refined in the theories of modern universalism and modern territorialism. Supporters of modern universalism hailed the acceptance of the Model Law into the national legislation of countries as a victory over modern territorialism as the characteristics of modern universalism can be found throughout the Model Law. Modern universalism is, however, seen as theory which endangers the interests of local creditors as it favours universal administration of assets. However, modern territorialism is, on the other hand, acknowledged to protect the interests of local creditors. Therefore an investigation into the application of Chapter 15 by the courts of the USA will indicate if the interests of local creditors are sufficiently protected under this so-called modern universalistic approach and, if indeed so, how this is achieved. As the CBIA is neither operational nor effective in South Africa, cross-border insolvencies are governed by the common law and the precedents set down in case law. Writers and case law indicate that South Africa uses a system that can be described as between pure territorialism and modern territorialism. It can therefore be accepted that South Africa currently protects the interests of its local creditors sufficiently. The question then arises if, when South Africa made the CBIA effective and operational, would local creditors‟ interests still be sufficiently protected? As the CBIA and Chapter 15 are both based on the Model Law, they are basically identical in most aspects. Therefore an investigation into the application of Chapter 15 will also indicate if the CBIA will sufficiently protect the interests of local creditors.
This dissertation thus attempts, through an investigation of the applications lodged under Chapter 15, to indicate that the USA still succeeds in protecting the interests of its local creditors. The USA achieves this through utilising mechanisms made available through Chapter 15 itself. Consequently this dissertation shows that South Africa can make the CBIA operational, while still sufficiently protecting the interests of its local creditors.Thesis (LLM (Import and Export Law))--North-West University, Potchefstroom Campus, 2013
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Ras, Clinton. "The future of Cross-Border Insolvency Act 42 of 2000 in view of developments elsewhere." Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/46100.
Full textAbstract:
My research project explores the future of the Cross-Border Insolvency Act 42 of 2000 in view of developments relating to cross-border insolvency regimes elsewhere. The continuing development of International trade and investment gave rise to the escalation in the amount of multinational enterprises that have debt, own assets and conduct business in numerous jurisdictions around the globe. The increase of cross-border insolvency as a global economic problem, gave rise for the need of a general equitable system to administer cross-border insolvency universally. The Model law on Cross-Border Insolvency was promulgated by the United Nations Commission on International Trade Law (UNCITRAL) in 1997. The purpose of the UNCITRAL Model Law on Cross-Border Insolvency is to assist states to equip their insolvency laws with a modern, harmonised and fair framework to address instances of cross-border insolvency more effectively.South Africa adopted the UNCITRAL Model Law on Cross-Border Insolvency by way of the Cross-Border Insolvency Act 42 of 2000. However the Cross-Border Insolvency act is not effectively operative. One of the main reasons why the act hasn’t become fully operative yet is because of the fact that the Act introduced a reciprocity clause. In my Research project I will address the issues caused by cross-border insolvency. I will discuss the common law position relating to cross-border insolvency in South Africa. I will furthermore indicate why the Cross-border Insolvency Act 42 of 2000 is not effectively operative in South Africa. Lastly I will compare the Cross-border Insolvency dispensation in South Africa to that of the United States of America, the United Kingdom and Australia.Mini Dissertation (LLM)--University of Pretoria, 2014.
tm2015
Procedural Law
LLM
Unrestricted
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Weideman, Jeanette. "European and American perspectives on the choice of law regarding cross–border insolvencies of multinational corporations / Weideman J." Thesis, North-West University, 2011. http://hdl.handle.net/10394/6956.
Full textAbstract:
An increase in economic globalisation and international trade the past two decades has amounted to an increase in the number of multinational enterprises that conduct business, own assets and have debt in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross–border insolvency (CBI). CBI refers to the situation where insolvency proceedings are initiated in one jurisdiction with regard to a debtor’s estate and the debtor also has property, debt or both in at least one other jurisdiction.
When a multinational enterprise is in financial distress, the structure of such an enterprise poses significant challenges to the question of how to address its insolvency. This is due to the fact that, although the multinational enterprise is found globally in different jurisdictions around the world, the laws addressing its liquidation are local. The possibility of restructuring the multinational enterprise or liquidating it in order the satisfy creditor claims optimally depends greatly upon the ease with which the insolvency law regimes of multiple jurisdictions can facilitate a fair and timely resolution to the financial distress of that multinational enterprise.
The legal response to this problem has produced two important international instruments which were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross–Border Insolvency in 1997, which has been adopted by nineteen countries including the United States of America (in the form of Chapter 15 of the US Bankruptcy Code) and South Africa (in the form of the Cross–Border Insolvency Act 42 of 2000). Secondly, the European Union adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. These two instruments address the management of general default by a debtor and are aimed at providing a legal framework which seeks to enhance legal certainty,
cooperation, coordination and harmonization between states in CBI matters throughout the world.
After discussing the viewpoints of various writers, it seems clear that “modified universalism” is the correct approach towards CBI matters globally. This is mainly due to the fact that the main international instruments currently dealing with CBI matters are all based upon “modified universalism”. By looking at various EU and US case law it is also evident that, although there is currently still no established test for the determination of the “centre of main interest” (COMI) of a debtor–company under Chapter 15, there is a difference in the approach adopted by courts in the EU and those in the US in this regard. This dissertation further discusses the requirements for a debtor–company to possess an “establishment” for the purpose of opening foreign non–main insolvency proceedings in a jurisdiction as well as the choice–of–law considerations in CBI matters.Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.
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Zhang, Daoning. "Multinational corporate groups rescue in the EU : theories, solutions and recommendations." Thesis, University of Manchester, 2017. https://www.research.manchester.ac.uk/portal/en/theses/multinational-corporate-groups-rescue-in-the-eutheories-solutions-and-recommendations(51336f27-85ad-4102-8d65-dae126b11dc4).html.
Full textAbstract:
This thesis is a study on solutions for cross-border insolvency of multinational corporate groups, with particular reference to the EU Regulation on insolvency proceedings recast 2015 (EIR Recast). Multinational corporate groups are important players in the modern business world; how to treat them in cross-border insolvency context has been hotly debated. The main issue is how to preserve the value of the group under circumstances where member companies in the same group are in more than one country and subject to more than one set of insolvency law. The existing solutions include substantive consolidation, procedural consolidation proposed by cross-border insolvency law scholars, market/hybrid legal solutions aiming to avoid group-wide insolvency, and the EIR recast which unprecedentedly provides 'group coordination proceedings' to respond to this issue as a procedural cooperation framework. All these solutions will be examined in this thesis in the light of insolvency law/cross-border insolvency law theories and multinational enterprises theories. The aim of this thesis is to examine the existing solutions for cross-border insolvency of multinational corporate groups on the basis of a combination of insolvency law/cross-border insolvency law theories and multinational enterprises theories. The thesis starts from theoretical grounds of corporate rescue and argues that preservation of going concern value and respecting entity law are the goals of corporate rescue law. It further considers theories regarding multinational enterprises and its implications on developing cross-border insolvency solutions for multinational corporate groups. With an understanding of relevant theories, the thesis examines the procedural consolidation solution which focuses on insolvency jurisdictional rules. The result is that procedural consolidation may not be in line with the reality of how the groups are operated and may not provide certainty to the creditors and market. The thesis moves on to examine the market/hybrid legal solutions which purport to be able to avoid group-wide cross-border insolvency. It shows certain merits of these solutions and also reveals the limitations and uncertainty of them. Finally, it argues that a general insolvency cooperation framework- the new group coordination proceedings- is desirable to work as an alternative to the above-mentioned solutions with improved certainty. The thesis tries to improve the utility of the proceedings by providing a recommendation to one of their main weaknesses-the opt-out mechanism.
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Moolman, Shirande. "The implications of Lagoon Beach Hotel (Pty) v Lehane 2016 (3) SA 143 (SCA) for the South African cross-border insolvency dispensation." Diss., University of Pretoria, 2016. http://hdl.handle.net/2263/60069.
Full textAbstract:
This mini-dissertation explores the implications of Lagoon Beach Hotel (Pty)
Limited v Lehane 2016 (3) SA 143 (SCA) for the South African cross-border
insolvency dispensation, as this case deals with the various problems that
arise in cross-border insolvency. As a result of these problems and a certain
amount of uncertainty when it comes to dealing with cross-border insolvency
issues, many investors are reluctant to invest cross-border. This is due to the
fact that multiple countries, each with their own laws concerning cross-border
insolvency, are involved. Thankfully, the United Nations Commission on
International Trade Law has provided a set of guidelines in this regard,
namely the Model Law on Cross-Border Insolvency. Although South Africa
has enacted the Cross-Border Insolvency Act 42 of 2000, and most of the
provisions provided for in the Model law have been included in the legislation,
the Act still remains inoperative.
Throughout this dissertation the Lagoon Beach case will therefore be critically
analysed. The analysis will start off with a discussion of the common law, as it
is currently the legal position in South Africa. Thereafter a detailed analysis
will be conducted of the various orders of court of the Lagoon Beach case and
how the courts differed or agreed in their approach. Finally, the Lagoon Beach
case will be discussed in light of the Act and the issues in the case will be
solved hypothetically by applying the Act to the problems discussed
throughout the dissertation.Mini Dissertation (LLM)--University of Pretoria, 2016.
Mercantile Law
LLM
Unrestricted
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Clivaz, Gabrielle. "La notion de centre des intérêts principaux : Réflexion à partir du Règlement CE 1346/2000 du 29 mai 2000 relatif aux procédures d’insolvabilité." Thesis, Montpellier 1, 2013. http://www.theses.fr/2013MON10033/document.
Full textAbstract:
A l’heure de la mondialisation et de la croissance permanente des échanges entre les Etats, la question de la faillite internationale est devenue une problématique de choix, au coeur d’un système aux multiples défaillances. Le jeu du marché ne s’opère plus au regard d’un territoire et d’un Etat, mais véritablement au regard d’un espace économique qui dépasse largement les frontières de la France. Le règlement communautaire 1346/2000 relatif aux procédures d'insolvabilité, entré en vigueur le 31 mai 2002, est un premier aboutissement en la matière au niveau de l’Union européenne. Il appréhende l’insolvabilité transfrontière en réussissant à articuler procédure universelle et procédure territoriale et en liant la compétence juridictionnelle au droit substantiel applicable. La lex fori concursus , à portée universelle, est désignée par le seul critère de compétence applicable pour l'ouverture de la procédure principale d'insolvabilité : le centre des intérêts principaux du débiteur. Notion autonome et incontestablement centrale, elle ne bénéficie pas d'une définition établie. Présumée coïncider avec le siège statutaire pour le débiteur personne morale, l'acception de la notion de centre des intérêts principaux s'est faite de manière prétorienne au fil des années. A l’heure de la révision du Règlement, sa définition n'est toujours pas inscrite à l'article 2 du règlement 1346/2000. Néanmoins, cela s'avère être un avantage lorsque l'on se positionne dans une logique de dimension internationale, dans laquelle le concept de centre des intérêts principaux tend également à s'inscrireIn the era of globalisation and permanent growth of trade between States, the matter of cross-border insolvency has become an issue of choices at the heart of a system that shows multiple failures. The market rules are no longer governed by a territory or a State, but truly by an economic area that extends far beyond the borders of France. The EC regulation 1346/2000 on insolvency proceedings that came into effect on the 31st of May, 2002 is the first achievement on this matter for the European Union. It apprehends cross-border insolvency while successfully articulating both the universal and territorial proceedings as well as binding jurisdiction with the applicable substantive law. The lex fori concursus with its universal scope is designated by the sole criterion of applicable jurisdiction for initiating the main procedure of insolvency: the debtor's centre of main interests. As an autonomous and undeniably central concept, it has no settled definition. The understanding of the centre of main interests concept which supposedly coincides with the registered office for the legal person debtor, has been put in the hands of Court over the years. Such definition is still not covered in Article 2 of the 1346/2000 regulation. However, this turns out to be an advantage on an international dimension when the concept of centre of main interests tends also to be considered on a world-wide basis
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Cho, Eung-Kyung. "Le droit international privé coréen des faillites – comparé aux droits français et européen." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020019.
Full textAbstract:
La faillite internationale est la faillite présentant des éléments d'extranéité. Avec l'expansion du commerce international et la succession d'instabilités économiques, l'importance du sujet a été considérablement accrue. 11eme puissance mondiale avec une économie reposant largement sur le commerce, la Corée (République de Corée), non moins concernée par cette tendance, a modernisé sa législation il y a une décennie. Le volume des échanges commerciaux entre la France et la Corée ayant doublé en 10 ans avec aujourd'hui près de 200 entreprises françaises présentes sur le territoire coréen, les règles nouvelles du droit coréen régissant les faillites transfrontalières ne sont plus indifférentes pour le juriste français. Le droit international privé coréen des faillites, sans paraître à première vue fondamentalement différent des droits français ou européen, comporte plusieurs particularités et fait par ailleurs l'impasse sur des notions phares de l'universalisme modifié auquel il prétend avoir adhéré. La substance, les motivations, et les possibles suites de cet état actuel du droit sont traitées dans la présente étude, avec un regard sur le droit des faillites, le droit de la procédure civile et le droit international privé coréens ainsi qu'une comparaison de ces derniers avec les droits français et européenCross-border insolvency denotes the situations arising out of insolvency involving extraneous aspects. Along with the expansion of international trade and the succession of economic instabilities, the importance of its study has undoubtedly become greater. As one of the most concerned actors by this phenomenon, Korea (Republic of Korea) has modernized its legislation a decade ago. The volume of trade between France and Korea having doubled in 10 years, with nownear 200 French companies established in Korea, the new rules of Korean law governing crossborder insolvencies are no longer irrelevant to French jurists. Korean cross-border insolvency law, while not appearing prima facie to be fundamentally different from French or European laws, has several peculiarities and obfuscates the core principles of modified universalism to which it claims to adhere. The substance, the motivations and the possible results of this state of law will constitute the topic of this thesis, with an overview of Korea's bankruptcy law, civil procedural law and private international law, along with their comparison to French and European laws
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"Maritime Cross-Border Insolvency Under The UNCITRAL Model Law Regime." Tulane University, 2018.
Find full textAbstract:
acase@tulane.eduCross-border cases involving admiralty and bankruptcy law are troublesome because of the fundamentally different natures of the policy objectives of these two private avenues. The current declining shipping market shows the urgent need to address these issues at both a theoretical and practical level. The basic problem considered in this dissertation is what should happen when a ship owner files an insolvency proceeding in one country, while at the same time facing an in rem action against its vessel in another country? In other words, should the in rem action arising in one country be stayed or dismissed because of the existence of insolvency proceedings in another country? This dissertation also discusses the relevant issues regarding the determination of the “center of main interest” of an offshore shipping company and the scope of a debtor’s assets. The author uses a comparative law analysis, selecting four leading shipping countries—Australia, the U.K., the U.S., and Singapore—and examining their approaches to the treatment of maritime claimants. The author also proposes a solution to help eliminate the ambiguity occurred in maritime cross-border insolvency cases under the UNCITRAL Model Law regime, with an eye to enhancing the development of the shipping industry.
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Jingchen Xu
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Chan, Tin Yan Kerensa. "Modified universality : the best model in regulating cross-border insolvency." Thesis, 2005. http://hdl.handle.net/2429/16487.
Full textAbstract:
Insolvency is an economic fact of life. Some businesses thrive and some businesses fail.
The bankruptcies of corporate debtors with assets and liabilities worldwide pose special
challenges to governments and insolvency practitioners. In any given case, two questions
must be answered. First, where shall the proceeding begin? Second, what law shall be
applicable to the proceeding? In addressing these two issues, four approaches have been
proposed by the research community: universality, modified universality, territoriality
and cooperative territoriality.
For the past few decades, universality is often perceived as the best theory of all in
regulating cross-border insolvency. It fits in perfectly with the ex ante and ex post goals
possessed by an ideal insolvency system. However, in recent years, the utility inherent to
the theory is being questioned. It is doubtful that states will be willing to sacrifice their
sovereignty for the general interests of creditors and debtors. This doubt is substantiated
by the invariable failures of international bankruptcy instruments that embraced
universality as the theoretical justification.
In contrast, modified universality, the watered-down version of universality, has quietly
made its way onto the international scene. Its nature and benefits have received high
regard among nations. A general consensus in the international community that modified
universality provides the best model for regulating cross-border bankruptcy has been
cultivated. The purpose of this paper is to confirm this consensus through a combination
of theoretical and practical analysis. The theory will also be feed into the discussion on
cross-border bankruptcy between Canada and the United States in predicting the future
mode of cooperation between the two countries.Law, Peter A. Allard School of
Graduate
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Banahan, Dearbhaile Aifo. "Cross Border Insolvency-COMishifts : an entitlement under EU fundamental freedoms?" Master's thesis, 2012. http://hdl.handle.net/10400.14/14561.
Full text
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Gao, Ran. "Cross-border Insolvency: A Comparative Study of Chinese and the U.S. legislations." Thesis, 2012. http://hdl.handle.net/1807/33209.
Full textAbstract:
This thesis offers a comparative study of Chinese and the U.S. legislations on the issue of cross-border insolvency. China has included one article concerning this issue in its Enterprise Bankruptcy Law promulgated in 2006. Four years after that, when facing a real case, it is found that the legislation is too preliminary to be used. In the meantime, great efforts have been made among many western countries in order to promote international cooperation on this issue. The United States is one of the most active countries. This thesis analyzes the Chinese version of cross-border insolvency legislation, factor by factor. It also does case study of mostly U.S. cases and some other countries’ cases and tries to find out how the courts interpret the corresponding factors. In doing so, it hopes to improve the Chinese legislation by taking international experience as reference.
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Mouton, Ella. "The competence of the foreign representative in cross-border insolvency matters : a comparison between South Africa and Australia / Ella Mouton." Thesis, 2014. http://hdl.handle.net/10394/11905.
Full textAbstract:
The world is continuously becoming a smaller and smaller place. It has become a
global community of sorts merely divided by imperceptible borders that are easily
transversed by ever-evolving technological advances in the fields of business,
travel, communication and such, each regulated by its own set of domestic laws and
regulations. Hordes of South Africans immigrate to Australia annually due to, among
others, economic and political uncertainty. These ex-patriots generally leave behind
assets and creditors in South Africa whilst acquiring new ones wherever they choose
to establish themselves. This serves as basis for potential future cross-border
insolvency issues. Furthermore, entities such as companies trading internationally,
and multinational companies with branches and offices in more than one state, have
property and creditors in many different jurisdictions. Should such a company be
liquidated, it would give rise to questions of jurisdiction, the procedures to be
followed, the appointment of a liquidator(s) and the distribution of assets, to name a
few.
The absence of a universal cross-border insolvency law leaves room for much
uncertainty and confusion. What is of importance for purposes of this research is to
clarify all prevailing uncertainties regarding the rights and obligations of the foreign
representative and the foreign creditor in cross-border insolvency matters. The
foreign representative is the person or entity appointed to administer the
reorganisation or liquidation of the insolvent debtor’s assets in a foreign proceeding.
The inconsistency in cross-border insolvency regulations between South Africa and
Australia has the consequence that there is no guarantee that a foreign creditor in
one state will be treated the same as a foreign creditor in terms of the domestic laws
of the other, as the Model Law aims to do. The situation would have been
significantly less complicated had the South African Cross-Border Insolvency Act been in force at present and had Australia been designated as a state to which this
Act would apply. In that case, the treatment of foreign representatives and foreign
creditors would be of a reciprocal nature.
This dissertation attempts, through an investigation of the South African and
Australian domestic insolvency laws, to ascertain the position of the foreign
representative and foreign creditors pre and post incorporation of the Model Law.
Consequently this dissertation compares the legal positions of these parties in terms
of South African and Australian national insolvency legislation.LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2014
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Cudowska, Maria. "Zdatność arbitrażowa w postępowaniu insolwencyjnym. Analiza prawnoporównawcza." Phd thesis, 2019. http://hdl.handle.net/11320/8023.
Full textAbstract:
Celem rozprawy doktorskiej jest analiza zagadnienia zastosowania alternatywnych metod rozwiązywania sporów, a w szczególności arbitrażu, w postępowaniu insolwencyjnym. Przy opracowywaniu dysertacji zostały wykorzystane następujące metody badawcze: metoda dogmatyczna, analiza orzecznictwa, metoda analityczna, metoda statystyczna oraz metoda porównawcza. W pracy posłużono się również metodą empiryczną. Dysertacja została podzielona na pięć rozdziałów. Rozdział I dotyczy problemów kluczowych z perspektywy postępowania arbitrażowego oraz postępowania upadłościowego. W rozdziale II, badana jest istota oraz charakter prawny międzynarodowego postępowania upadłościowego. Celem rozdziału III, jest ukazanie upadłości oraz arbitrażu z perspektywy wybranych państw common law. Rozdział IV jest opracowaniem dotyczącym relacji arbitrażu do postępowań upadłościowych z perspektywy Polski w ujęciu międzynarodowym. Rozdział V jest opracowaniem orzecznictwa sądów upadłościowych, które musiały się zmierzyć z zagadnieniem intersekcji prawa upadłościowego oraz arbitrażu. Dział ten stanowi również podsumowanie rozważań oraz badań empirycznych. Rozprawę zamykają uwagi dotyczące przewidywanych zmian w tej dziedzinie prawa, a także rekomendacje dla ustawodawcy w odniesieniu do przyszłych zmian legislacyjnych.The doctoral dissertation “Arbitrability of insolvency disputes. A comparative approach” aims at analyzing possibilities of implementing ADR methods in an insolvency proceeding. The dissertation is based on a paradigm, that in some cases ADR can become a useful tool whilst conducting an insolvency proceeding. The study includes five chapters. Chapter I is an attempt to compare and contrast insolvency and arbitration in the context of the economic analysis of law. Chapter II explores the implications of a cross-border insolvency proceeding. Next, Chapter III compares insolvency and ADR regulations in the U.S, Ireland and England. Chapter IV elaborates on the intersection of insolvency and arbitration in Poland taking an international perspective on the issues involved. The final chapter is a case study, supported by empirical research conducted by the author. Concluding remarks and recommendations are included in the end.
Uniwersytet w Białymstoku. Wydział Prawa. Zakład Prawa Handlowego
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Lotter, Gina. "Cross-border insolvency : a comparative study of recognition and enforcement of foreign insolvency judgments between China and South Africa weighed in light of the progress of the European Union." Thesis, 2014. http://hdl.handle.net/10210/11021.
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Plachá, Pavla. "Aktuální otázky mezinárodního insolvenčního práva." Doctoral thesis, 2017. http://www.nusl.cz/ntk/nusl-368715.
Full textAbstract:
The PhD thesis "Current Issues in International Insolvency Law" aims to describe and draw attention to the moments that, in the opinion of its author, have had the strongest impact on international insolvency law so far. As such it is chiefly devoted to the analysis of existing regulation in the area of European insolvency law (which is principally based on Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings - the "Old Insolvency Regulation" - and Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings - the "New Insolvency Regulation"), and also provides a selection of the relevant case law which has over time significantly changed the way in which specific issues and instruments related to this area are viewed. To do justice to the complexity of the subject matter, the thesis also discusses the determination of jurisdiction in cross-border insolvency proceedings and recognition of the effects of foreign insolvency proceedings in relations between EU and non-EU countries. The main aim of the thesis is to answer the following questions: which legal documents have had the strongest impact on the current form of international insolvency law; whether and how the interpretation of the concept of centre of a debtor's main...
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Čermák, Jan. "Mezinárodní insolvenční právo." Master's thesis, 2016. http://www.nusl.cz/ntk/nusl-350639.
Full textAbstract:
This diploma thesis deals with the topic of international insolvency law, in particular with certain areas of European insolvency law, with an emphasis on the matters of international jurisdiction for opening of main and territorial insolvency proceedings and international jurisdiction to hear actions related to insolvency proceedings. Furthermore, this diploma thesis is aimed at evaluation of the Czech legislation regarding cross-border insolvencies. The legal framework for European insolvency law was incorporated into the Insolvency regulation in 2002. Due to disagreements between certain member states of the EU regarding some of the important institutes of cross-border insolvencies the Insolvency regulation often contains vague provisions. It, therefore, fell to the Court of Justice of the European Union to provide interpretation of such ambiguous clauses. In 2012 the European commission created a report on the application of the Insolvency regulation and simultaneously presented a long awaited proposal for modernisation of the European insolvency law in the form of the Insolvency regulation recast. The aim of the Insolvency regulation recast is to promote cooperation between member states in the matter of cross-border insolvency proceedings. Additionally, it codifies a substantial part of the...
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Střížová, Veronika. "Aktuální otázky přeshraničních insolvenčních řízení." Doctoral thesis, 2020. http://www.nusl.cz/ntk/nusl-435485.
Full textAbstract:
The aim of this PhD thesis is to analyse the current status of European insolvency law and with the help of both national and European judicial decisions put together an overview of practical obstacles that insolvency courts, debtors, creditors and insolvency trustees across Europe are facing when dealing with cross-border insolvencies. At the very core of this topic stands the European Insolvency Regulation ("EIR") which was adopted in 2015 and is effective within the member states as of June 2017. Since this regulation was put together as a recast of its predecessor, i.e. the original insolvency regulation adopted in 2000 and effective as of 2002, naturally this research is oriented at comparing the two legislative acts and mainly assessing whether or not the recast EIR managed to overcome some of the inconsistencies in the wording of the original EIR, often resulting in conflicting interpretations and a great deal of preliminary rulings filed with the Court of Justice of the EU. Apart from looking into good old instruments of private international law such as the scope, the jurisdiction, the choice of law and the recognition and enforcement rules governed by the EIR, this thesis also focuses on topics that are very bankruptcy-specific and dissimilar to anything we know from other fields of law....
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Coelho, Felipe Santos. "Insolvência transfronteiriça: a relocalização do cip do devedor e a problemática do forum shopping no âmbito de aplicação do regulamento (UE) 2015/848 (reformulação)." Master's thesis, 2018. http://hdl.handle.net/10316/85799.
Full textAbstract:
Dissertação de Mestrado em Direito: Especialidade em Ciências Juridico-Forenses apresentada à Faculdade de DireitoO objetivo do presente trabalho é analisar os processos de insolvência de caráter transfronteiriço de sociedades e pessoas coletivas que possuem seu centro de interesses principais dentro da Comunidade Europeia, compreendidos no âmbito de aplicação do Regulamento (UE) 2015/848 do Parlamento Europeu e do Conselho, de 20 de maio de 2015, relativo aos processos de insolvência, em contraste com a problemática do forum shopping.A percepção desse fenômeno acontece por meio do exercício da liberdade de estabelecimento, que uma sociedade utiliza para migrar o seu CIP de um Estado-Membro para outro, com a intenção de requerer a abertura de um processo de insolvência em uma determinada jurisdição, que contenha um direito substantivo mais favorável aos seus interesses e/ou de seus credores.A fim de preservar o bom funcionamento do mercado interno da União Europeia, a preocupação em distinguir entre o bom forum shopping e o mau forum shopping é constante, dessa maneira, evitar incentivos que levem as partes transferir bens e ações judiciais de um Estado-Membro para outro, de forma abusiva e fraudulenta em prejuízo do interesse coletivo dos credores deve ser necessariamente afastada. .
The objective of this paper is to analyze cross-border insolvency proceedings of companies and legal persons which have their center of main interests within the European Community within the scope of Regulation (EU) 2015/848 of the European Parliament and of the Council, of May 20, 2015, relating to insolvency proceedings, in contrast to the problem of forum shopping.The perception of this phenomenon occurs through the exercise of freedom of establishment, which a company uses to migrate its CIP from one Member State to another, with the intention of requesting the opening of insolvency proceedings in a particular jurisdiction, containing a substantive right more favorable to their interests and / or their creditors.To preserve the smooth functioning of the internal market of the European Union, the concern to distinguish between good forum shopping and bad forum shopping is constant, thus avoiding incentives for the parties to transfer assets and legal actions of a Member State to another, abusively and fraudulently to the detriment of the collective interest of creditors must necessarily be avoided. .