Journal articles: 'UNCITRAL Model Law on Cross-border Insolvency'

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Asnil, Dicky Moallavi. "UNCITRAL Model Law on Cross Border Insolvency Sebagai Model Pengaturan Kepailitan Lintas Batas Indonesia dalam Integrasi Ekonomi ASEAN." Undang: Jurnal Hukum 1, no. 2 (March 11, 2019): 323–46. http://dx.doi.org/10.22437/ujh.1.2.323-346.

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The economic integration program between the members of Association of South East Asian Nations (ASEAN) and surrounding areas that trancends national borders and citizenship potentially creates the cross borders bankrupcy problems. The problem was born when the debtor undergoing bankruptcy process has assets abroad,where the bankruptcy proceedings are hampered by the laws of the country concerned. In adition, Indonesia and ASEAN do not yet a bankruptcy regulation that binds its member states in the settlement of this problems. UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment is a model of cross-border insolvency law made by The United Nations which aims to be a reference of the world countries in the business of modernization and harmonization of national bankruptcy law respectively. This article shows that UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment which adheres to this flexibility principle can be used as a solution to modernize and harmonize bankruptcy law of ASEAN countries, especially Indonesia. Abstrak Program integrasi ekonomi antar negara anggota Association of South East Asian Nations (ASEAN) dan sekitarnya yang melampaui batas-batas negara dan kewarganegaraan saat ini berpotensi melahirkan permasalahan kepailitan lintas batas. Permasalahan itu lahir pada saat debitor yang menjalani proses kepailitan di suatu negara memiliki aset di luar negeri, di mana proses kepailitan terhadap aset pailit itu terhambat oleh hukum yang berlaku di negara bersangkutan. Indonesia dan ASEAN sampai saat ini belum memiliki peraturan kepailitan yang mengikat negara anggotanya dalam penyelesaian permasalahan ini. UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment adalah sebuah model hukum kepailitan lintas batas yang dibuat oleh Persatuan Bangsa-Bangsa yang bertujuan untuk menjadi rujukan negara-negara dunia dalam usaha modernisasi dan harmonisasi hukum kepailitan nasional masing-masing. Artikel ini menunjukkan bahwa UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment yang menganut prinsip fleksibilitas dapat dijadikan solusi dalam upaya melakukan modernisasi dan harmonisasi hukum kepailitan negara-negara ASEAN, khususnya Indonesia.

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Harmer, R. W. "Documentation B. uncitral model law on cross-border insolvency." International Insolvency Review 6, no. 2 (1997): 145–53. http://dx.doi.org/10.1002/iir.3940060206.

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Wee, Meng Seng. "The Belt and Road Initiative, China’s Cross-Border Insolvency Law, and the UNCITRAL Model Law on Cross-Border Insolvency." Chinese Journal of Comparative Law 8, no. 1 (June 1, 2020): 116–42. http://dx.doi.org/10.1093/cjcl/cxaa012.

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Abstract By examining the special features of cross-border insolvency affecting the Belt and Road Initiative (BRI), this article explains that it is crucial for China to ensure that its cross-border insolvency law is fit for the purposes of the BRI. The current law is unsatisfactory, as may be seen in Hanjin Shipping’s decision not to seek recognition of its Korean restructuring proceeding in China. China wants to cooperate more in cross-border insolvency, but it is concerned that recognizing foreign insolvency proceedings will prejudice China’s interests. This article explains that the logic and limits of the United Nations Commission on International Trade Law’s Model Law on Cross-Border Insolvency is enlightened self-interest, which leads to recognition being very limited and distinguished from relief and relief being based on domestic law. Thus, it argues that the adoption of the Model Law will not prejudice China’s interests.

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Amalia, Jihan. "URGENSI IMPLEMENTASI UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY DI INDONESIA: STUDI KOMPARASI HUKUM KEPAILITAN LINTAS BATAS INDONESIA DAN SINGAPURA." Jurnal Hukum Bisnis Bonum Commune 2, no. 2 (July 12, 2019): 162. http://dx.doi.org/10.30996/jhbbc.v2i2.2499.

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Dalam era globalisasi, perdagangan tak lagi hanya dilakukan dalam satu wilayah negara, melainkan dapat pula antarnegara. Perkembangan bisnis internasional beriringan dengan kebutuhan akan hukum yang juga akomodatif. Dalam perjanjian pinjam-meminjam antarpelaku usaha, ada kalanya debitor tidak dapat membayarkan utangnya sehingga mengalami kepailitan. Hal ini membuat kepailitan lintas batas menjadi diskursus yang penting dalam mengimbangi dinamika dunia usaha saat ini. Dalam tulisan ini, ada beberapa hal terkait yang akan dibahas. Pertama, UNCITRAL Model Law on Cross-Border Insolvency memberi pedoman terkait hukum kepailitan lintas batas. Kedua, status quo hukum kepailitan Indonesia dalam mengatur kepailitan lintas batas. Ketiga, studi komparasi dengan Singapura sebagai negara yang hingga sebelum 2017 tidak menerapkan UNCITRAL Model Law on Cross-Border Insolvency. Keempat, urgensi UNCITRAL Model Law diimplementasikan dalam hukum kepailitan Indonesia. Tulisan ini dibuat berdasarkan penelitan yuridis-normatif dengan bahan hukum primer dan sekunder sebagai data sekunder yang menjadi dasar analisis.

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Bork, Reinhard. "The European Insolvency Regulation and the UNCITRAL Model Law on Cross-Border Insolvency." International Insolvency Review 26, no. 3 (September 12, 2017): 246–69. http://dx.doi.org/10.1002/iir.1282.

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Mohan, S. Chandra. "Cross-border Insolvency Problems: Is the UNCITRAL Model Law the Answer?" International Insolvency Review 21, no. 3 (October 12, 2012): 199–223. http://dx.doi.org/10.1002/iir.1203.

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., Sefriani. "INEFFECTIVENESS OF THE LAW ON CROSS INSOLVENSI UNCITRAL MODEL." Yustisia Jurnal Hukum 8, no. 1 (April 28, 2019): 30. http://dx.doi.org/10.20961/yustisia.v0ixx.27858.

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Legal problems due to cross border insolvency are increasingly complex. The United Nations has issued the 1997 Model Law on Cross border Insolvency (CBI) to help countries solve their CBI problems. However, this model law is not effective because very few countries adopted it. The legal problem studied is why very few countries adopted the model law and how to overcome the ineffectiveness of the model law. The results of the study indicate that the lack of adoption of the model law caused by: the model law is only a non-binding legislative text; Too much flexibility encourages deviations from the provisions; do not want to reduce their sovereignty, status quo, international cooperation recommended by the model law is not always of primary interest, and many countries have been bound by international agreements on regional CBI which are considered more relevant than the model law. The solutions that can be suggested to overcome the ineffectiveness of the model law on CBI are national bankruptcy laws mechanism; the International Treaties and Conventions mechanism; Rules, Regulations, Principles and Guidelines mechanisms and protocol or adhoc agreements.Treaties and Conventions; mekanisme Rules, Regulations, Principles and Guidelinesan dan mekanisme pembuatan protocol atau adhoc agreement.Kata kunci: model law; kepailitan lintas batas negara; adopsi

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McCormack, Gerard. "US exceptionalism and UK localism? Cross-border insolvency law in comparative perspective." Legal Studies 36, no. 1 (March 2016): 136–62. http://dx.doi.org/10.1111/lest.12096.

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This paper addresses how the UNCITRAL Model Law on Cross-Border Insolvency has been implemented and interpreted in the US and the UK. The Model Law has attained a measure of international acceptance and is intended to achieve greater efficiencies in the administration of insolvency cases with transnational dimensions. But different manners of implementation in different countries and differing interpretations may hinder the prospects for harmonisation and coordination of laws. The paper will address in particular whether US interpretations differ from those in the UK and whether the US decisions are so infused with ‘American exceptionalism’ that they cannot be relied upon as sure guides in other countries.

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Omar, Paul. "Crossborder jurisdiction and assistance in insolvency: The position in Malaysia and Singapore." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 1 (June 26, 2017): 157. http://dx.doi.org/10.17159/1727-3781/2008/v11i1a2755.

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Malaysia and Singapore are members of the common law family and have 'inherited' their company and insolvency law from models in use in the United Kingdom with influences from Australia. It is the purpose of this article to outline the law in relation to cross-border insolvency, particularly the winding up of foreign companies, the co-operation provisions in bankruptcy and insolvency as well as more recent moves to redevelop insolvency through UNCITRAL and Asian Development Bank initiatives.

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Weideman, Jeanette, and Leonie Stander. "European and American Perspectives on the Choice of Law Regarding Cross-Border Insolvencies of Multinational Corporations – Suggestions for South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 5 (June 1, 2017): 133. http://dx.doi.org/10.17159/1727-3781/2012/v15i5a2522.

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An increase in economic globalisation and international trade has amounted to an increase in the number of multinational enterprises that have debt, own assets and conduct business 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). The legal response to this trend has, inter alia, produced two important international instruments that 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 (the Model Law) in 1997, which has been adopted by nineteen countries including the United States of America and South Africa. Secondly, the European Union (EU) adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. Both the EC Regulation and Chapter 15 adopt a “modified universalist” approach towards CBI matters. Europe and the United States of America are currently the world leaders in the area of CBI and the CBI legislation adopted and applied in these jurisdictions seems to be effective. As South Africa’s Cross-Border Insolvency Act is not yet effective, there is no local policy guidance available to insolvency practitioners with regard to the application of the Model Law. At the basis of this article is the view that an analysis of the European and American approaches to CBI matters will provide South African practitioners with valuable insight, knowledge and lessons that could be used to understand and apply the principles adopted and applied in terms of the EC Regulation and Chapter 15, specifically the COMI concept, the “establishment” concept in the case of integrated multinational enterprises and related aspects.

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Sarra, Janis. "Northern Lights, Canada's version of the UNCITRAL Model Law on Cross-Border Insolvency." International Insolvency Review 16, no. 1 (2007): 19–61. http://dx.doi.org/10.1002/iir.145.

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Yamauchi, Keith D. "Should reciprocity be a part of the UNCITRAL Model Cross-Border Insolvency Law?" International Insolvency Review 16, no. 3 (2007): 145–79. http://dx.doi.org/10.1002/iir.151.

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Lee, Jejeong. "Centre of Main Interests in the UNCITRAL Model Law on Cross-Border Insolvency." Korean Lawyers Association Journal 63, no. 2 (February 2014): 23–85. http://dx.doi.org/10.17007/klaj.2014.63.2.002.

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Dewi, Putu Eka Trisna. "The Cross-Border Insolvency in the Execution of Bankrupt Assets Outside Indonesian Jurisdiction: A Comparative Study with Malaysia, Singapore, and the Philippines." IKAT: The Indonesian Journal of Southeast Asian Studies 5, no. 1 (August 11, 2021): 47. http://dx.doi.org/10.22146/ikat.v5i1.64157.

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Insolvency institutions have an important role in realizing legal certainty in the settlement of debt and credit disputes, which is one of the risks that arise from the rapid development of international business transactions. Bankruptcy cases containing foreign elements are called cross-border insolvency. The problems that arise in cross-border insolvency are more complex, especially regarding the execution of assets of bankrupt debtors situated outside Indonesia's jurisdiction. This study uses a doctrinal legal research method with a statutory approach. Bankruptcy in Indonesia is regulated in Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations. In this law, the execution of assets of bankrupt debtors outside the jurisdiction of Indonesia has not been regulated so that the curator as the body appointed to carry out the execution cannot carry out the task as mandated by the law. The non-executable assets of the bankrupt debtor outside the jurisdiction of Indonesia have caused the bankruptcy estate (de boedel) ineffective; therefore, creditors do not receive a maximum payment related to debtor's debt. For this reason, Indonesia needs to adopt the UNCITRAL model of law on cross-border insolvency or to make bilateral and/or multilateral agreements that are reciprocal in nature related to the execution of bankrupt debtors' assets located outside Indonesia's jurisdiction.

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Yamauchi, Keith D. "The UNCITRAL model cross-border insolvency law: the stay of proceedings and adequate protection." International Insolvency Review 13, no. 2 (2004): 87–114. http://dx.doi.org/10.1002/iir.120.

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Mevorach, Irit. "A Fresh View on the Hard/Soft Law Divide: Implications for International Insolvency of Enterprise Groups." Michigan Journal of International Law, no. 40.3 (2019): 505. http://dx.doi.org/10.36642/mjil.40.3.fresh.

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It is the orthodox belief that treaties and—within the EU—directly applicable regulations represent hard, binding international law, while other international instruments—including model laws—are forms of soft law. In a previous publication(The Future of Cross-Border Insolvency: Overcoming Biases and Closing Gaps), I discussed how the traditional distinction between hard and soft law is less firm, due particularly to economic and behavioral implications of instrument choice and design. Building on that analysis, this Article focuses on the new rules for the international insolvency of enterprise groups in the Recast EU Insolvency Regulation 2015 (the “EIR”) and in the forthcoming UNCITRAL model law on enterprise groups. Contrasting the instruments and using a multi-layered assessment illustrates the blur between hard and soft law. This Article argues that only on the first layer—the agreement to participate in the international instrument—is the EIR (chapter on groups) robustly harder than the UNCITRAL instrument. On the second and third layers—enforcement of the instrument and the agreement on hard, more complete rules within it—the UNCITRAL instrument is almost as hard or even harder than the EIR and, as such, more promising. The Article also provides certain concrete conclusions regarding the way that regional and global regimes may be hardened in the future to meet the challenges of enterprise groups’ insolvencies.

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Yamamoto, Kazuhiko. "New Japanese legislation on cross-border insolvency as compared with the UNCITRAL model law." International Insolvency Review 11, no. 2 (2002): 67–96. http://dx.doi.org/10.1002/iir.98.

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Eiselen, Sieg. "The Adoption of UNCITRAL Instruments to Fast Track Regional Integration of Commercial Law." Revista Brasileira de Arbitragem 12, Issue 46 (May 1, 2015): 82–99. http://dx.doi.org/10.54648/rba2015025.

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ABSTRACT: The United Nations Commission for International Trade Law (UNCITRAL) has adopted and is promoting a number of texts for the harmonization of international trade law such as the 1980 Vienna Convention for the International Sale of Goods (CISG), the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1974 New York Convention on the Limitation Period in the International Sale of Goods. There are also newer instruments which have not yet gained such wide acceptance that may be considered for adoption such as the 2005 UN Convention on the Use of Electronic Communications in International Contracts, the 1996 UNCITRAL Model Law on Electronic Commerce and the 1997 UNCITRAL Model Law on Cross-Border Insolvency. This paper will identify and discuss the UNCITRAL texts that may be most useful to fast track the regional harmonization and integration of commercial law. The paper will discuss the experience with these instruments internationally, more specifically the experience with the CISG and the Model Law on Electronic Commerce. The paper will critically examine the value of such harmonizing instruments. The paper will also outline critical success factors for regional legal harmonization and integration based on the experience with the UNCITRAL documents. Finally it will be argued that a number of these instruments are suitable for adoption in countries in order to facilitate regional integration.

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Mannan, Morshed. "Are Bangladesh, India and Pakistan Ready to Adopt the UNCITRAL Model Law on Cross-Border Insolvency?" International Insolvency Review 25, no. 3 (October 17, 2016): 195–224. http://dx.doi.org/10.1002/iir.1262.

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Rim, Chi-Yong. "The adoption of UNCITRAL Model law in 1997 and the practice of cross-border insolvency in UK." Korea Private International Law Journal 27, no. 2 (December 31, 2021): 157–237. http://dx.doi.org/10.38131/kpilj.2021.12.27.2.157.

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Adhi Hutama, I. Dewa Made, and Dewa Gde Rudy. "Penyelesaian Perkara Kepailitan Dengan Harta Pailit Berada Di Luar Negeri." Acta Comitas 5, no. 2 (August 28, 2020): 351. http://dx.doi.org/10.24843/ac.2020.v05.i02.p12.

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Kepailitan merupakan suatu upaya yang dilakukan sebagai wujud upaya perlindungan hak kreditor pada saat debitor sudah tidak mampu lagi melunasi hutangnya. Dalam prkara kepailitan dimungkinkan debitor pailit memilki harta yang berada di luar negeri yang sebelumnya tidak digunakan sebagai jaminan. Dengan keadaan demikian akan timbul permasalah mengenai bagaimana hukum Indonesia mengatur mengenai harta debitor pailit yang berada di luar negeri ? dan upaya hukum apa yang dapat dilakukan sehingga kreditor pailit dapat memperoleh pelunasan dengan harta debitor pailit yang berada di luar negeri? Penelitian ini akan dilakukan dengan metode yuridis normatif dengan meneliti bahan kepustakaan yang berhubungan dengan penelitian ini, serta dilakukan dengan pendekatan perundang-undangan dan pendekatan konsep. Dalam Kitab Undang-Undang Hukum Perdata dan Undang-Undang Kepailitan dan Penundaan Kewajiban Pembayaran Utang tidak secara jelas mengatur mengenai harta debitor yang berada di luar negeri, tetapi dalam beberapa pasal menunjukkan memungkinkan harta tersebut dijadikan boedel pailit. Terdapat upaya yang dapat dilakukan sehingga harta debitor pailit di luar negeri bisa dieksekusi sebagai pelunasan hutangnya dengan cara mengajukan permohonan melalui pengadilan yang ada dinegara letak harta benda debitor, melalui bilateral agreement, diplomatic channel, dan menggunakan UNCITRAL Model Law on Cross Border Insolvency with Guide to Enacment. Berdasarkan hukum di Indonesia, terhadap harta debitor yang ada di luar negeri dimungkinkan sebagai alat pelunasan hutang dengan upaya-upaya tertentu, namun akan lebih mudah dengan meratifikasi UNCITRAL Model Law on Cross Border Insolvency with Guide to Enacment.

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Panchenko, V. V. "Cross-border bankruptcies in Ukraine: organizational and legal issues." Analytical and Comparative Jurisprudence, no. 3 (September 28, 2022): 56–60. http://dx.doi.org/10.24144/2788-6018.2022.03.10.

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The article conducts a scientific and practical study of organizational and legal issues regarding cross-border bankruptcies, which is one of the spheres of regulation of international private relations. The current legislation of Ukraine in the field of bankruptcy procedures, in particular, proceedings in bankruptcy cases related to foreign bankruptcy procedures, and international documents in the field of cross-border insolvency were analyzed. The lack of legal certainty in the Code of Ukraine on bankruptcy procedures of the "cross-border" category, the procedural rights of the parties in the bankruptcy procedure with the participation of a foreign element, the organizational and legal algorithm during the proceedings in bankruptcy cases related to the foreign bankruptcy procedure, the procedural aspects of granting judicial assistance to the manager of the foreign bankruptcy procedure. The practical ineffectiveness of the implementation of legal mechanisms of cross-border bankruptcy procedures in Ukraine, which hinders the proper resolution of problematic issues in this area, is noted. The necessity of building organizational and legal algorithms of the bankruptcy procedure with the participation of a foreign element in Ukraine in order to optimize the simplified and at the same time effective exercise of rights and the achievement of the financial interests of the participants in cross-border bankruptcy procedures was determined. Recommendations are provided for the regulatory consolidation of organizational and legal aspects of cross-border bankruptcies on the basis of recognized world principles, reflected in special international documents, taking into account the constant change of regulatory requirements with a mandatory comparison between them and the updated provisions of the UNCITRAL Model Law on Cross-Border Insolvency dated May 30, 1997 and international judicial practice, which will ensure the practical implementation and implementation of logically formed procedural algorithms for settling the insolvency of entities within the specified sphere in Ukraine.

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Mevorach, Irit. "On the Road to Universalism: A Comparative and Empirical Study of the UNCITRAL Model Law on Cross-Border Insolvency." European Business Organization Law Review 12, no. 4 (December 2011): 517–57. http://dx.doi.org/10.1017/s156675291140001x.

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Syaifullah, Imam, and Surya Sakti Megantoro. "Ruling due to Bankruptcy Assets Debtors Beyond Areas in Indonesia." Lambung Mangkurat Law Journal 6, no. 1 (February 5, 2021): 1–11. http://dx.doi.org/10.32801/lamlaj.v6i1.201.

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The purpose of this study is to examine the consequences of bankruptcy decisions on debtor assets outside the territory of Indonesia and to see the extent to which the bankruptcy law provides protection to creditors from debtors whose assets are located outside the territory of Indonesia. This is Normative legal Research with a statutory approach, a conceptual approach and a comparative approach. The results and discussion concluded that the bankruptcy decision handed down by the Commercial Court in Indonesia could have an impact on the debtor’s assets outside the territory of Indonesia in accordance with Article 21 of the Bankruptcy Law. The issue of execution is hindered by the principle of territoriality from other countries. The bankruptcy law has not fully provided legal protection for creditors if the debtor has assets outside the territory of Indonesia, as a way for curators to carry out private selling. Indonesia should adopt the Uncitral Model Law on cross-border insolvency (1997) or enter into international agreements, either bilateral or multilateral.

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Kim, Young-Seok. "Korean Practice of the UNCITRAL Model Law on Cross-Border Insolvency and the Improvement plan - Including the practice of the Seoul Bankruptcy Court -." Korea Private International Law Journal 27, no. 2 (December 31, 2021): 3–38. http://dx.doi.org/10.38131/kpilj.2021.12.27.2.3.

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Wessels, Bob. "Book Review: Cross-Border Insolvency. A Commentary on the UNCITRAL Model Law, edited by Look Chan Ho. (Global Business Publishing, 3rd ed., 2012)." European Company Law 9, Issue 6 (December 1, 2012): 330–32. http://dx.doi.org/10.54648/eucl2012056.

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Omar, Paul J. "Cross-Border Insolvency: A Commentary on the UNCITRAL Model Law Look ChanHo (ed) (4th edn) (2017, Globe Business Publishing, London), 968 pp (in 2 vols), £295, ISBN 978-1-911078-21-0." International Insolvency Review 27, no. 2 (May 18, 2018): 281–83. http://dx.doi.org/10.1002/iir.1307.

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Rahmawati, Rizka. "Eksekusi Aset Debitor yang Berada Di Luar Negeri dalam Penyelesaian Sengketa Kepailitan." SASI 25, no. 2 (December 26, 2019): 121. http://dx.doi.org/10.47268/sasi.v25i2.217.

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In order to carry out business activities, it is not uncommon for someone to make a debt to have enough capital. These accounts payable activities of course require objects that are a guarantee to give a sense of security to creditors. In its development it is not uncommon for collateral objects to be held by debtors abroad. However, if the collateral object is located abroad, it will not be easy to execute as a debt repayment tool because of the state sovereignty that must be respected and the territoriality principle adopted by a country. The problem in this writing is about how Indonesia's national legal regulation regarding debtors 'assets is located abroad and how efforts can be made so that debtors' assets residing abroad can be executed as debt repayment tools. This research will be conducted using a type of normative juridical research with a type of legislative approach (concept approach) and a conceptual approach. According to the provisions of Article 212 PKPU UUK, that property owned by bankrupt debtors abroad can be used as bankrupt boedel. The provisions of the article give the right to a creditor to obtain repayment by using debtor's assets which are not bound to him which are outside the jurisdiction of the Unitary State of the Republic of Indonesia. In order for collateral objects to be used abroad to be used as a debt repayment tool, a number of ways can be taken, namely by a general court process, bilateral agreements (diplomatic agreements), diplomatic channels, or using the UNCITRAL Law on Cross Model. Border Insolvency with Guide to Enactment.

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Farley, Justice. "Joint uncitral/insol judicial colloquium on cross-border insolvency (new orlenans, march 1997). Judges' evaluation." International Insolvency Review 6, no. 3 (1997): 236–51. http://dx.doi.org/10.1002/iir.3940060307.

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Sugiyama, Etsuko. "Prospects for international bankruptcy legislation and new challenges." Impact 2021, no. 4 (May 11, 2021): 32–34. http://dx.doi.org/10.21820/23987073.2021.4.32.

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In our increasingly globalised world, businesses may operate in more than one country. If this is the case for a business and the business is forced to declare bankruptcy, multiple legal issues can arise. This is due to the lack of a single law relating to international insolvency, with most legal systems across the world having been developed on a territorial basis. Although there have been attempts to develop a unified framework for international insolvency, there is a need for improved harmonisation and modernisation of international business rules. Professor Etsuko Sugiyama, Graduate School of Law, Hitotsubashi University, Japan, is working to develop and implement measures that will facilitate cross-border cooperation when it comes to international bankruptcy. In one line of investigation, she is exploring whether existing systems in Japan are sufficient to deal with issues associated with international bankruptcy. In addition, Sugiyama is part of the United Nations Commission on International Trade Law (UNCITRAL) working group five, which works to facilitate a harmonisation of the rules surrounding domestic and cross-border insolvency. However, the group's rules and recommendations are yet to be adopted by all countries, necessitating more work to encourage uptake. This involves providing information on legislation and promoting the benefits.

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Damardjati, Respati, Emmy Latifah, and Al Sentot Sudarwanto. "ANALISIS PEMBENTUKAN ASEAN CROSS BORDER INSOLVENCY REGULATION SEBAGAI SOLUSI PERMASALAHAN KEPAILITAN LINTAS BATAS DI ASEAN." Jurnal Privat Law 5, no. 1 (February 2, 2017): 106. http://dx.doi.org/10.20961/privat.v5i1.19368.

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AbstractThis paper purposes to analize the idea for establishing ASEAN cross border insolvency regulation as a solution of cross-border insolvency problem in ASEAN. It is a legal research viewed from descriptive analytic. The result of this paper indicates that the absence of uniformity or harmonization of insolvency law in ASEAN region will inflict some problems which are relating to the procedure of recognition and enforcement of a foreign insolvency. The regulation as a solution of cross-border insolvency in the ASEAN region is expected to become a facilitator for resolving problems and reducing uncertainty in cross-border insolvency cases. ASEAN Cross Border Insolvency Regulations in the form of a model law is the right solution to solve the problems of cross-border insolvency in the ASEAN region.Keyword (s) : ASEAN, ASEAN Cross Border Insolvency Regulation, Cross Border InsolvencyAbstrakArtikel hukum ini bertujuan untuk menganalisis gagasan pembentukan ASEAN cross border insolvency regulation sebagai solusi permasalahan kepailitan lintas batas di ASEAN. Jenis penelitian hukum ini adalah penelitian hukum normatif yang bersifat deskriptif. Hasil penelitian ini menunjukkan bahwa tidak adanya keseragaman atau harmonisasi hukum kepailitan di kawasan ASEAN menimbulkan permasalahan yang berkaitan dengan prosedur pengakuan dan pelaksanaan putusan kepailitan asing. Kehadiran sebuah pengaturan hukum sebagai solusi dari permasalahan kepailitan lintas batas di kawasan ASEAN sangat diharapkan untuk dapat menjadi fasilitator dalam menyelesaikan permasalahan dan dapat mengurangi ketidakpastian dalam perkara kepailitan lintas batas. ASEAN Cross Border Insolvency Regulation berupa model law merupakan solusi yang tepat dalam menyelesaikan permasalahan kepailitan lintas batas di kawasan ASEAN.Kata Kunci : ASEAN Cross Border Insolvency Regulation, Kepailitan Lintas Batas

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Mevorach, Irit. "Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?" European Business Organization Law Review 22, no. 2 (February 8, 2021): 283–315. http://dx.doi.org/10.1007/s40804-021-00204-4.

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AbstractIn recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

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Mason, Rosalind. "Implications of the UNCITRAL model law for Australian cross-border insolvencies." International Insolvency Review 8, no. 2 (1999): 83–108. http://dx.doi.org/10.1002/(sici)1099-1107(199922)8:2<83::aid-iir53>3.0.co;2-0.

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Wessels, Bob. "Cross-Border Insolvency Law in Europe: Present Status and Future Prospects." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 1 (June 26, 2017): 67. http://dx.doi.org/10.17159/1727-3781/2008/v11i1a2752.

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In May 2007 the European countries celebrated the first lustrum of the EU Insolvency Regulation (1346/2000). This article describes where Europe stands with its model which is based on well known theories of private international law for dealing with cross-border insolvencies. The EU Insolvency Regulation provides for a national court to exercise international jurisdiction to open insolvency proceedings. The basis for international jurisdiction is the debtor’s “centre of main interests” or COMI. The two most important cases decided by the European Court of Justice (17 January 2006 Staubitz Schreiber and 2 May 2006 Eurofood) are discussed. The article further analyses the regulation’s legal concept and its procedural context and explains that 'financial institutions' are not covered by the Insolvency Regulation, but by separate directives (2001/17; 2001/24). After having taken stock several suggestions are submitted for improvement of the system of cross-border insolvency in Europe.

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Hsien, Rachel Chiu Li. "A World Without Borders; A New World Order: Navigating Cross-Border Insolvencies Through Arbitration." Asian International Arbitration Journal 14, Issue 2 (December 1, 2018): 117–41. http://dx.doi.org/10.54648/aiaj2018007.

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To date, multi-jurisdictional efforts aimed at managing cross-border insolvencies are largely limited to broad speaks of cooperation between national Courts. Absent is pointed attention to the incongruence in national insolvency laws at play. Without a single cross-jurisdictional forum with policing-like powers to navigate these differences, detours from the certainty, speed, and predictability that insolvency law serves have become a recurrence. This article posits realigning the goals of insolvency law in the context of cross-border insolvencies, by employing arbitration and mediation as lubricants to the difficult ‘choice of law’ and ‘choice of forum’ issues that present. The author proposes the construct of a specialized interstate dispute resolution centre that runs on a quasi-arbitration-mediation model and a set of ‘choice of law’ principles. This framework offers a path to resolve certain cross-border insolvency related disputes that carry a substantial transnational element. Most critically, the author advocates the value of a transnational integrated framework aimed at building consensus around ‘choice of law’ and ‘choice of forum’ issues. She believes this is key to realizing the goals of certainty and expeditious management of multinational commercial enterprises in financial distress.

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Burman, Harold, and Jay Lawrence Westbrook. "United Nations Commission on International Trade Law: Model Law on Cross-Border Insolvency." International Legal Materials 36, no. 5 (September 1997): 1386–98. http://dx.doi.org/10.1017/s0020782900013474.

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Chua, Eunice. "Enforcement Of International Mediated Settlement Agreements In Asia: A Path Towards Convergence." Asian International Arbitration Journal 15, Issue 1 (May 1, 2019): 1–27. http://dx.doi.org/10.54648/aiaj2019001.

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In 2014, the United Nations Commission on International Trade Law (‘UNCITRAL’) first considered a proposal for the development of a multilateral convention on the enforceability of international commercial settlement agreements reached through conciliation (defined to include mediation). The goal of this project was to encourage international mediation in the same way that the New York Convention facilitated the growth of arbitration. The work of UNCITRAL Working Group II has resulted in two instruments – the Singapore Convention on Mediation; and Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. In Asia, where continued growth of cross-border trade is expected, the potential for these UNICTRAL instruments to facilitate the resolution of cross-border commercial disputes and support economic growth is immense. With a focus on jurisdictions such as China, India, Hong Kong and Singapore, this article discusses the convention and amended model law, and examines how far down Asia is on the path towards convergence in the enforcement of international mediated settlement agreements.

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Walters, Robert. "Cross-Border Insolvency and the 2022 Australia-India Comprehensive Economic Cooperation Agreement." Business Law Review 43, Issue 5 (October 1, 2022): 194–205. http://dx.doi.org/10.54648/bula2022029.

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Since 2020, the world has been plunged into uncertain times. The world economy was significantly affected by the outbreak of the coronavirus disease of 2019 (COVID-19), which rapidly evolved and was quickly declared a global pandemic. As conflict in Eastern Europe raged from the beginning of 2022, the pandemic being far from over and inflation gripping the world economy, the financial stress individuals and entities were experiencing continued to escalate. At the time Australia and India signed the Comprehensive Economic Cooperation Agreement (AI-CECA) in April 2022. The signing of this economic partnership is a major step forward for both countries. The proposed economic benefits for both nation states are estimated to be significant, and will extend across many sectors including agriculture, financial services, science and innovation. This article will examine the AI-CECA and make the case that cross-border insolvency cooperation must be an ongoing priority for both countries to ensure strong economic management, and inserted into future amendment of this agreement. Problematic though is the fact that the current approach taken by Australia and India varies greatly. This article will also examine the United Nations Commission on International Trade Law , Cross-Border Insolvency Model Law, in the context of Australia and India. Australia, India, Comprehensive Economic Cooperation Agreement, Cross-Border Insolvency, Trade Agreement

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Draguiev, Deyan. "The Effect of Insolvency on Pending International Arbitration: What Is and What Should Not Be." Journal of International Arbitration 32, Issue 5 (October 1, 2015): 511–42. http://dx.doi.org/10.54648/joia2015024.

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Situations in which the respondent in international arbitral proceedings is declared insolvent in its jurisdiction of incorporation while the arbitration is still pending are not uncommon. They raise a number of choice of law issues both in terms of substantive and procedural law. While the roots of arbitration lie in party autonomy, insolvency laws are often comprised of mandatory rules protecting the interests of different classes of stakeholders. This article attempts to devise an abstract model of the various choice of law and characterzation problems regarding the cross-border effect of the insolvency and provide reasoned options and solutions for the arbitral tribunal faced with the interaction between insolvency and pending arbitration proceedings. It is suggested that it is part of the arbitrators’ duty to render an enforceable award to consider cautiously the effects of insolvency, especially if there is a risk of a clash with the mandatory framework of insolvency either at the seat of the arbitration or the likely place of enforcement of the award. The arguments are tested against recent case law of various national courts having reviewed the conflicts between arbitration and insolvency.

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Anderson, Kent. "Testing the Model Soft Law Approach to International Harmonisation: A Case-Study Examining the UNICITRAL Model Law on Cross-Border Insolvency." Australian Year Book of International Law Online 23, no. 1 (2004): 1–24. http://dx.doi.org/10.1163/26660229-023-01-900000002.

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Masoud, Benhajj Shaaban. "Towards adoption of the United Nations Commission on International Trade Law Model Law on cross-border insolvency in Kenya." International Insolvency Review 22, no. 3 (September 16, 2013): 211–22. http://dx.doi.org/10.1002/iir.1213.

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Zasemkova, O. F. "The Singapore convention on enforcement of mediated settlement agreements (mediation): from dream to reality?" Lex Russica, no. 3 (April 5, 2019): 60–72. http://dx.doi.org/10.17803/1729-5920.2019.148.3.060-072.

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On 26th of June, 2018, at its 51th session, the UN Commission on International Trade Law (UNCITRAL) announced the completion of two important documents — a draft United Nations Convention on International Settlement Agreements Resulting from Mediation, as well as the draft amendments to the UNCITRAL Model L aw on International Commercial Conciliation (2002) that, to a large extent, repeats the provisions of the draft Convention. It is expected that after its approval by the UN General Assembly on August 1, 2019, the Convention will be open for signature and, if ratified by a significant number of States, will play an important role in increasing the attractiveness of this method of dispute settlement to the international business community, allowing it to compete with international commercial arbitration.In this regard, the article attempts to analyze the main provisions of this Convention and to assess the feasibility of accession to it of the Russian Federation, taking into account the fact that currently in Russia this method of settlement of cross-border commercial disputes is not widespread. According to the results of the analysis, the author comes to the conclusion that the adoption of this Convention will create a basis for the enforcement of international agreements reached as a result of mediation and acceptable for States with different legal, social and economic conditions, while maintaining the inherent flexibility of this method of dispute resolution. This, in turn, will reduce the likelihood of parties to cross-border commercial disputes going to court or international commercial arbitration after mediation and, accordingly, will increase the attractiveness of this method of dispute resolution for the parties.

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Nottage, Luke. "International Commercial Arbitration in Australia: Whats New and Whats Next?" Journal of International Arbitration 30, Issue 5 (October 1, 2013): 465–94. http://dx.doi.org/10.54648/joia2013031.

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This article argues that not much has changed since Australia amended in 2010 its International Arbitration Act, incorporating most of the 2006 revisions to the UNCITRAL Model Law as well as other reforms aimed at positioning Australia as a plausible arbitral venue in the Asia-Pacific region. There is no evidence yet of a broader 'cultural reform' that would make international arbitration speedier and more cost-effective - as urged by Australia's then Attorney-General when introducing the 2010 amendments. In fact, the article first outlines one ongoing cross-border dispute that has engendered at least five sets of proceedings, including a (thankfully unsuccessful) constitutional challenge to the Model Law regime. It then compares case disposition statistics for other Federal Court cases decided three years before and after the amendments, finding only minor differences.1 The article suggests a range of further revisions needed for the Act that emerge from the dispute including the constitutional challenge, as well as other topics for reform including measures to encourage a more internationalist interpretation of instruments such as the Model Law. Continuous improvement and continuous vigilance are needed for Australia to keep developing distinctive expertise in this complex and evolving field of law and practice.

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Dahiyat, Emad Abdel Rahim. "Online Commercial Arbitration in Jordan: Prospects and Challenges." Business Law Review 32, Issue 12 (December 1, 2011): 330–38. http://dx.doi.org/10.54648/bula2011077.

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Online arbitration is a promising method for the resolution of electronic commerce disputes since it copes much more maturely with the speed, dynamism and global nature of cross-border transactions over the Internet by avoiding formalities, delays and the expense of ordinary litigation. However, the flourish of online arbitration does not only depend on the technology but also relies on the legal framework and whether it is flexible enough to encompass such modern kind of arbitration and allow the smooth running of its procedures. This paper thus explores the main challenges that might face the future of online arbitration in Jordan, and examines whether or not the Jordanian Law is in line with the international and European standards in this regard, chiefly those found in the EC Directives and the UNCITRAL Model Laws. Furthermore, this paper briefly addresses the issue of what the law ought to be in order to successfully accommodate online arbitration and make its use possible.

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Garnett, Richard. "NATIONAL COURT INTERVENTION IN ARBITRATION AS AN INVESTMENT TREATY CLAIM." International and Comparative Law Quarterly 60, no. 2 (April 2011): 485–98. http://dx.doi.org/10.1017/s0020589311000030.

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International commercial arbitration has long been a popular method for resolving cross-border business disputes. The opportunity for parties to choose their adjudicators and the dispute resolution procedure, the scope for privacy and the greater capacity for enforcement of awards compared to court judgments are all important reasons that parties prefer international arbitration over litigation. Reinforcing this trend in favour of international commercial arbitration has been a general consensus among national courts and legislatures that support, rather than interference, should be provided to the arbitral process. Such a philosophy is apparent, for example, in the requirements in the widely adopted New York Convention for States to recognize and enforce both foreign arbitration agreements and awards, and in international instruments such as the 1985 UNCITRAL Model Law on International Commercial Arbitration, which authorize national courts to assist, rather than intervene, in the conduct of arbitrations within their borders. Moreover, international commercial arbitration has proven to be sufficiently flexible as a dispute resolution method to be used both in disputes between private parties, and between private and State entities.

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Čolović, Vladimir, and Siniša Aleksić. "Koordinacija stečajnih postupaka – sa posebnim osvrtom na transfer sredstava stečajne mase i stečaj povezanih društava / Coordination of Bankruptcy Proceedings - with special emphasis to the the transfer of bankruptcy assets and to bankruptcy of a members of group of companies." Годишњак факултета правних наука - АПЕИРОН 6, no. 6 (July 11, 2016): 5. http://dx.doi.org/10.7251/gfp1606005c.

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The possibility to start against the debtor more bankruptcy proceeding, of which one is main bankruptcy, and the other are secondaries or specials, has led to the necessity of defining the rules governing coordination of these proceedings, in order to achieve the unity of the bankruptcy assets and to the equal settlement of creditors. Today, national laws and international statutory sources contain rules governing the coordination of bankruptcy proceedings. However, these rules have their basis in Private International Law. The author presents the rules of the EU Regulation No. 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, then the rules of Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law, and, also, the rules of the USA legislature. The paper analyzes the status of the foreign bankruptcy decision on the territory of the country of recognition, then, the relationship and cooperation between the subjects referred to bankruptcy proceedings, in particular between the bankruptcy trustees, as well as between foreign bankruptcy trustee and the court, and the transfer of bankruptcy assets from the secondary to the main bankruptcy proceeding, which defines the status of the main relative to the secondary proceeding. Special attention is paid to bankruptcy of a members of group of companies.

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Berends, André. "Book ReviewsBook ReviewsBerendsAndréMinistry of Justice, The Netherlands122000473381390FletcherI.F., Insolvency in Private International Law: National and International Approaches, Clarendon Press, Oxford 1999, 465 pp. ISBN 019-825864-XCopyright © T.M.C. Asser Press 20002000T.M.C. Asser PresspdfS0165070X00001066a.pdfdispartBook Reviews1.See, for instance, T.M. Bos, Grensoverschrijdend faillissementsrecht in Europees perspectief diss. Vrije Universiteit Amsterdam (2000) (with summary in English: ‘Cross-border Bankruptcies in European Perspective’).2.Philip St. SmartJ., Cross-border Insolvency, 2nd edn. (London, Butterworths 1998).3.For instance, at a colloquium, organised by Insol and UNCITRAL, held in Toronto in 1995, an Expert Committee's Report was distributed (not published), in which six categories of states were distinguished. Category 1 contained the most open states, category 6 the states that were the most closed. The Netherlands and Japan were the only two states in category 64.One should bear in mind that the term ‘bankruptcy’ under English law only refers to an insolvency proceeding for natural persons5.See CooperN. and JarvisR., Recognition and Enforcement of Cross-Border Insolvency (Chichester, John Wiley and Sons Ltd. 1996), in which the laws on this point of 36 countries are described.6.The word ‘anglo-centric’ is used by Fletcher himself (p. 108), in a rather pejorative way7.Initiative of the Federal Republic of Germany and the Republic of Finland with a view to the adoption of a Council Regulation on insolvency proceedings, submitted to the Council on 26 May 1999, Official Journal C 221, 3 August 1999, pp. 8 et seq.8.Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings." Netherlands International Law Review 47, no. 03 (December 2000): 381. http://dx.doi.org/10.1017/s0165070x00001066.

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Kamyshanskyi, V. I. "LEGAL ASPECTS OF DIGITALIZATION OF INTERNATIONAL TRADE THROUGH IMPLEMENTATION OF BLOCKCHAIN TECHNOLOGY (EXPERIENCE FOR UKRAINE)." Economics and Law, no. 4 (December 8, 2022): 31–42. http://dx.doi.org/10.15407/econlaw.2022.04.031.

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The article is devoted to the study of the peculiarities of digitalization of international trade through the introduction of blockchain technology and the identification of issues that require legal regulation for the implementation of the relevant process in Ukraine. It is emphasized that digitalization of international trade through the introduction of blockchain technology opens up opportunities for optimization of administrative trade procedures and stimulation of foreign trade activity, in particular, it allows modernizing and optimizing the work of “single windows” (including certification and customs clearance); cross-border data exchange between government agencies or authorities and economic entities; payment transfer system, etc. In turn, the use of smart contracts, built on the appropriate technology, can automate the compliance of stakeholders with various contractual obligations; and data (in the blockchain) — is a stream of reliable information about past transactions, as they remain unchanged after entry. This provides greater transparency and the ability to trace the movement of a product or document throughout the supply chain with a high level of security and immutability, as well as eliminates double spending (in particular, by using the same digital documents as collateral for financing, which is a common source of fraud in international trade. At the same time, blockchain technology is only a tool on the way to optimizing administrative trade procedures and stimulating foreign economic activity and can be used only if there is appropriate legislation. In particular, the issues of determining the legal status of the blockchain (in particular, the terminology — “blockchain”, “smart contracts”) and blockchain-based applications need to be settled. Analysis of international experience proves the lack of unified approaches in this area. This actualizes the need to intensify work at the global international level to address the above issues. It is also advisable for Ukraine to join this process. For the sake of end-to-end digitalization of trade and limiting the possibility of potentially conflicting individual approaches that could lead to further disconnection and barriers to trade, harmonization of domestic legislation in accordance with existing international documents (in particular, UNCITRAL model laws) is becoming important. Digital trade agreements (e.g., the upcoming Digital Trade Agreement between Ukraine and the United Kingdom) are one of the tools that will help to intensify actions in this direction. In addition, among the issues that require regulation prior to the introduction of blockchain technology in international trade are the following: (1) the procedure for entering data (in particular, ensuring their accuracy and completeness) to be transmitted and exchanged on the blockchain; (2) protection of the transmitted data, (3) responsibility for data entry and processing, as well as the legal algorithm for their correction in case of errors (in particular, it should be clearly defined whether it is possible to make changes to the code underlying the blockchain to correct errors and, if so, who has the right to do it), (4) dispute resolution procedure; (5) mutual recognition of documents/certificates issued (this will ensure that the algorithms used work accurately with the data entered and comply with specific (international and national) rules), etc., as well as recognition of electronic signatures and electronic documents (in particular, transfer documents, bills of lading, promissory notes, warehouse receipts, etc. On this basis, it is considered expedient not to adopt a separate legal act like the Illinois State Law “On the Implementation of Blockchain Technology”, but to modernize the existing laws of Ukraine: the Law of Ukraine “On Electronic Commerce”, the Law of Ukraine “On Electronic Documents and Electronic Document Management”, etc. These are the directions of further research. It is considered appropriate at the legislative level to allow the use of smart contracts, records and signatures protected by blockchain in the field of trade and to use the method of analogy of the law in order to extend the legal regime of electronic contracts and signatures to them, which is reflected in the law-making of certain foreign countries (in particular, the United States (New York State). It is proposed to develop and adopt legislation on the digitalization of economic policy in general and foreign economic policy in particular, taking into account the principles of functional equivalence and technological neutrality. This will protect domestic legislation from the need for constant amendments to take into account the emergence of new technologies.

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Kurasha, Primrose E. R. "A COMPARATIVE ANALYSIS OF THE UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY AND EU INSOLVENCY REGULATION 2017, AGAINST THE BACKGROUND OF VARIOUS SOURCES OF CROSSBORDER INSOLVENCY LAW." Pretoria Student Law Review, no. 11 (2017). http://dx.doi.org/10.29053/pslr.v11i.1902.

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In this investigation, I will compare and contrast the UNCITRAL model law on cross-border insolvency law (hereafter referred to as ‘UNCITRAL model law’) with the EU Insolvency Regulation against the backdrop of various sources or dispensations of cross-border insolvency law. In this comparison, I will highlight the similarities and differences between the two, as well as discuss the other sources in depth, as they largely inform my research. My main aim in including the other sources in this comparative study is to provide deeper insight into these two sources of international cross-border insolvency law, as provided for by academics and sages in the field of insolvency law. These other sources include legislation, common law, treaties and regional dispensations.

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"Draft uncitral model law on cross-broder insolvency." International Insolvency Review 6, no. 2 (1997): 154–60. http://dx.doi.org/10.1002/iir.3940060207.

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Journal articles on the topic 'UNCITRAL Model Law on Cross-border Insolvency'

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