Cross-border Insolvency Issues In The Field Of View Of Conflict Of Laws

Cross-border bankruptcy is a very complicated problem. It refers to procedural law and substantive law within every country and estate law and contract law within every country. Along with the economic globalization and more interdependence among countries, international investment and transnational corporation developed rapidly. Meanwhile, the amount of cross-border bankruptcy increased greatly. Every country strengthens the legislation on cross-border bankruptcy in order to confront with the reality. As regard to the international legislation, Hague Private International Law Conference discussed the cross-border bankruptcy in 1894, but due to this problem refers to sensitive fields such as public order and economic interests within one country, there is no convention ratified by any country until now. But with promotion of the international cooperation, the unification of cross-border bankruptcy law still was in the ascendant. UN and EU got some success. But because of the great divergence among countries, there is no great development on this issue. As for China, research on cross-border bankruptcy makes much sense. Along with the Chinese entry of WTO and the development of international investment, more and more cross-border bankruptcy will come out and the judges need the provision to judge these cases. However, there is no provision on this issue in our legal system. Because of the need of practice, this article will discuss the conflict of law on cross-border bankruptcy, in order to bring further research on this issue. The whole article contains more than 30,000 words and is made up of four parts.Part I: Introduction on conflict of law of cross-border bankruptcy. This part concerns the definition of bankruptcy and cross-border bankruptcy, the need of international cooperation on cross-border bankruptcy, the development on legal system of cross-border bankruptcy and the conflict of law on cross-border bankruptcy. This part examined these issues and pointed out that international cooperation should be the principle and objective of cross-border bankruptcy. The conflict of law on cross-border bankruptcy lies on two critical points :extraterritorial legal effect and application of law.Part II: Extraterritorial legal effect of cross-border bankruptcy. In this part ,the author analyzed the three main opinions on this issue firstly and pointed out their advantages and disadvantages. Then the author observed the track of domestic legislation of Japan and Britain and the international legal documents of EU and UN. Meanwhile, the author analyzed the extraterritorial legal effect of cross-border bankruptcy from point of view in practice. According to the analysis from theory and practice, the author disclosed that the legislation on extraterritorial effect of cross-border bankruptcy should consider the balance between protection of domestic interests and facility of international cooperation.Part HI: Application of law on cross-border bankruptcy. This part is the main point of this article. Bankruptcy refers to very wide and complicated legal problems. It concerns Bankruptcy law % estate law and contract law.lt also concerns private rights and public rights. Cross-border bankruptcy concerns wider and more complicated legal conflicts. Because of the difference of bankruptcy law among the countries ,it contains the legal conflicts on bankruptcy law > estate law and contract law. Conflicts on cross-border bankruptcy will also be brought by the difference on protection of public order among the countries .Bankruptcy law contains substantive law and procedural law .It is very hard to only apply one law to resolve the whole issue. Therefore, it is a wise choice to apply several given regulations to every aspect of bankruptcy .The author tried to hole out some opinions on application of law correspond to every aspect of bankruptcy and hope to have some reference on legislation.Part IV: Suggestion on Chinese legislation. Because there is no provision on this issue in legal system and some legal drafts do not provide perfect regulation. Therefore, the author held out that we should establish new cooperation mechanism with new pragmatism. We should consider the complication of application of law on cross-border bankruptcy and adopt to the idea that one provision provides one aspect of bankruptcy.