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On The Shift Of Research Approach Towards The Legal Issues Of Cross-Border Insolvency

Posted on:2008-03-11Degree:MasterType:Thesis
Country:ChinaCandidate:X LuoFull Text:PDF
GTID:2166360212976887Subject:International Law
Abstract/Summary:PDF Full Text Request
The legislation on cross-border insolvency is essentially the process of adjusting and controlling the import and export of bankruptcy-related public policy through legal means. During such process, the adjustment and control model through combining jurisdiction with applicable law from the extraterritorial effect approach severely distorts the essence of legislation on cross-border insolvency, which no longer meets the need of enhancing cooperation between countries on cross-border insolvencies. Hence, a new research approach shall be introduced, which will free the jurisdiction from the applicable law. Such research approach analyzes the legal issues of cross-border insolvency from the private international perspective and is able to effectively correct the defects of the extraterritorial effect approach. As a result, such new approach is widely welcomed by most western countries. Therefore, this Essay argues that it is a wise choice for Chinese scholars to abandon the extraterritorial effect approach when doing research on the legal issues of cross-border insolvency and shift to the private international law approach when analyzing the problem. Under such new research approach, jurisdiction is regarded as an independent means to adjust and control the import and export of bankruptcy-related public policy. The conflict of jurisdictions in cross-border insolvency cases may be significantly eased by classifying insolvency proceeding into two catalogues, namely main proceeding and non-main proceeding, based on different grounds to exercise jurisdiction. Other methods with the same function include self-constraint on exercising jurisdiction, providing higher status for foreign main proceeding and encouraging mutual assistance between foreign and domestic insolvency proceedings. All these will lead to a more flexible cooperation in the field of cross-border insolvency. Furthermore, the doctrine of dépacage makes it possible for applicable law to adjust and control the import and export of bankruptcy-related public policy, while the detailed method, which sets the different effect on which bankruptcy law has imposed the substantial legal relationship as the standard, turns the possibility into reality. Hence, the applicable law of avoidance, set-off and third party's right in rem may sometimes be not the lex concursus but certain foreign...
Keywords/Search Tags:cross-border insolvency, research approach, extraterritorial effect, jurisdiction, application of laws
PDF Full Text Request
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