On The Vesting Of Jurisdiction In The Multinational Enterprise Group Insolvency Cases

The new technology revolution has been promoted the integration of the global economy which is pushing the multinational enterprise groups (hereafter MEG) forward. As the MEG runs business in the international market, its shareholders and creditors usually spread all over the world. Once the MEG went insolvency, the impact would also be world wide. In the MEG bankruptcy cases, the first issue to settle is the vesting of jurisdiction. However, although the world economy has witnessed the bankruptcy of many large MEG, there is still no uniform rules that have binding force to regulate jurisdiction issue over MEG bankruptcy cases. So far, only a few countries have specific legislation over this issue.The times need corresponding legislation. Currently, the developed countries represented by the United States have made specific norms about the cross-border insolvency issues in the form of statute. And at the international level, the European Union has enacted the Council Regulation on insolvency proceedings. At present, multinational insolvency cases are usually settled via the cooperation between the courts case by case while the uniform legislation is still on the way. It is undeniable that the study on MEG insolvency problem is benefit for the development of MEG and the protection of the creditors. In this thesis, basing on the analysis of the issue in legislative and judicial practice, the author will try to forecast the trend and put forward some legislative proposals for China.The thesis will discuss this issue from the following five chapters:Chapter I will introduce the reality of the jurisdiction conflict in MEG bankruptcy cases. In this chapter, the author will clarify the scope of the theme, define the concept of MEG, analysis of the causes of the jurisdiction conflict, thereby, making a sound preparation for chapters II to V.Chapter II will focus on the jurisprudence level. In this chapter, the author will extract the factors that should be considered when deciding the jurisdiction issue in MEG bankruptcy cases and the probable approaches to settle this issue. Currently, there are two major approaches in practice, one is the"command and control"analysis approach which is represented by the United States, and the other one is the"rebuttal of the presumption of registration place"approach which is embedded in the European Union law. In the next two chapters, the author will analyze the pros and cons of these two approaches.Chapter III will introduce the"command and control"analysis approach. This approach is well reflected in the judicial practice of the Chapter 15 of the U.S. bankruptcy law. This chapter will take the Chapter 15 as an example to introduce the new trend of domestic legislation in this field. Meanwhile, this part will discuss the challenges that Chapter 15 has encountered in practice, which would focus on the SPhinX Funds Case and the Basis Yield Alpha Funds Case. It is worth to mention that Chapter 15 is drafted based on the UNCITRAL Model Law on Cross-Border Insolvency. It would be very helpful to learn the efforts from the U.N. in promoting the uniform of international legislation.Chapter IV will introduce the"rebuttal of the presumption of registration place"approach. This chapter will take the E.U. Regulation on Insolvency Proceedings of 2000 as example which is a typical representative of this approach. It has been over 10 years since the EU Regulation came in force and it has gone through different levels of the courts in the E.U. among which there were conflicts in interpreting the Regulation between the courts in different E.U. countries or even the European Court of Justice. Consequently, this thesis will also study the Eurofood Case and a series of cases to further explore the reason why the Regulation is a success. The Regulation has binding force on the E.U. countries and its success provides a reference for the promoting of the international legislation with binding force.Chapter V is the ending part of the whole thesis. In this chapter, the author will put forward specific legislative proposals in relation to vesting of jurisdiction in the MEG insolvency cases based on the comprehensive analysis of the previous four chapters. The author will start with the current legislation situation in the related field of China and then generalize the key factors that should be considered in dealing this issue. Finally, the author will put forward the legal advice for the Chinese oversea enterprises and the legislative proposals for the further legislation. The author finely know the uniform legislation of the whole world in this issue requires long and arduous efforts, while this part is only intended to be treated as a kind of reference, in a bid to benefit the international practice and the the legislation of the future for China.