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The Council Of The Lord From The Cross-border Insolvency Procedure Mode

Posted on:2007-11-10Degree:MasterType:Thesis
Country:ChinaCandidate:Y C ChenFull Text:PDF
GTID:2206360182991349Subject:International Law
Abstract/Summary:PDF Full Text Request
The conflicts and confusions existing in the cross-border insolvency casesbecome a serious problem to the bankruptcy law field. Because of the inflexibleinherent deficiency of the traditional "territorial" and "universal" principle, it becomesan important task for the scholars and operators who work around this field to find outa new resolution which is more reasonable and practical to reduce the conflicts. Toreview the legislations of nations and international organizations in second half of20th century in a deep way, we can catch up with such a trend that more and morelegislations concerning the cross-border insolvency are deviating from the territorialprinciple and turn to the attitude of cooperation and coordination. These legislationsfocus on providing solutions instead of making clear of their theory tendency in thelawmaking proceedings. They try hard to avoid conflicts between the two traditionalprinciples and find an eclectic way to keep balance between protection of localcreditors and international cooperation in cross-border insolvency cases from thepoint of view of increasing the international economic communication. This is theso-called "new pragmatism" which provides the main-secondary proceedingsapproach. As the exemplars to promote the cooperation and coordination in this area,The EUIR and UNCITRAL model law adopt this approach in different extent.The main-secondary proceedings approach concerns with so many legal issuesthat this paper cannot discuss them all due to the limitation of time, energy and scopeof article, etc. Thus, the starting point should be to discuss some important and keyproblem raised by cross-border insolvency. With respect to the research methods,comparative researches and case studies are used in this paper in order to probe intosome key problems more clearly and distinctly. The most representative EUIR makesan important role to illustrate the key points of the main-secondary proceedingsapproach clearly and, certain relative principles are combined into the necessarydiscussion and explanation. To outspread the comment, this paper contains fivechapters.Chapter One, as an introduction to this paper, makes a brief glimpse on thegeneral theory of insolvency, insolvency proceeding, and cross-border insolvency,then analyze the reasons which result in the conflicts between multi-proceedings incross-border insolvency cases, which reveals the research background, the maincontents, research purpose, practical significance and value of this paper to the readers.This chapter also means to illustrate the significance of this research to find out apractical way to settle the problems rose out of concomitant multi-proceeding incross-border insolvency.In Chapter Two, the author at first analyses two traditional theories oncross-border issue, universal and territorial approach, including their meanings,inherent cause of choice by a country's legislation and comments on their advantagesand disadvantages, and then introduces the "new pragmatism" as a keystone. Whilethe traditional territorial theory provides for the separate-entity approach and theutopian universal theory provides for single-entity approach, which both have theirinflexible inherent deficiency, the new pragmatism brings the main-secondaryproceedings approach. This approach provides that the forum where the debtor has hiscentre of main interests hosting the primary proceeding, while seeking to achieve thebroadest extraterritorial effect possible of its orders, leaves open the possibility ofcooperation with secondary proceedings commenced in another jurisdiction.Chapter three is the foundation and focal points, which also embody thecontribution of this paper, thus deserve much pen and ink. The author opens up a deepanalyze to the most representative EUIR, in order to illustrate the framework and itsoperation of the main-secondary proceedings approach. This approach is finallyadopted by EUIR through a long and rough way, its main structure is the MainInsolvency Proceedings opened in the Member State where the debtor has his centreof main interests and the Secondary Insolvency Proceedings opened in any MemberState where the debtor has an Establishment, as well as the join mechanism of the two.Via cite and analyze certain articles of EUIR, the author observes several basic legalproblems in the main-secondary proceedings approach, including compartmentalizingjurisdiction, choice of law rules and exceptions, the control power of the mainproceeding, as well as the fair treatment to all of the creditors. What's more, theauthor simulates a cross-border insolvency case to bring lights on the operation of themain-secondary proceedings approach. Finally the author sums up the experience ofthe EUIR.Chapter four gives a brief introduction of UNCITRAL model law. As thelimitation of scope of this paper, the author turn to the comparative researches method,compared the model law with the foregoing EUIR in a simple way, just to show thedifferent extent of the two to adopt the very approach.Chapter five, as a kind of conclusion, reviews and summarizes the crucialcharacters of the main-secondary proceedings approach based on the foregoingdiscussion and analysis, and prospects future development trends in this field. Theauthor emphasizes that to promote the cooperation and coordination in thecross-border insolvency area is the final goal of the main-secondary proceedingsapproach, which is also demanded by the background of the economic globalization.With the development of international economic communication andtransnational corporations, there are more and more insolvency cases concerninginternational or foreign elements. In this context, researches on legal issues resultingfrom cross-border insolvency became one of focuses of international legal scholar.The author hopes that this paper can work out as an opening word to bring a newbreeze with cooperation and coordination into the practice of the cross-borderinsolvency area.
Keywords/Search Tags:Cross-Border Insolvency, New-Pragmatism, Main-Secondary Proceedings Approach, EUIR
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