Cross-border Insolvency Jurisdiction Of The Conflict And Its Solution

Although transnational insolvency is a new field, the problems it involved in are quite extensive and complicated, mainly included the jurisdiction of transnational insolvency, choice of law, extraterritorial effect of bankruptcy, the recognition and enforcement in it, and the status and treatment of foreign creditors, etc. Our domain legal society initiated the study of transnational insolvency a bit late, besides, their fruits of study focus on the discussion of extraterritorial effect of bankruptcy, and some involved in choice of law, but almost none of them is about the choice of forum. While among all the problems in the transnational insolvency field, the jurisdiction problem is the most important one, which determines the choice of law in much degree. Furthermore, whether the judgment of one court has extraterritorial effect and thus obtains the recognition and enforcement of other countries, the primary prerequisite is the court hearing the case possessing the jurisdiction. However, the jurisdictional conflicts in transnational insolvency are inevitable, just owing to different standards of jurisdiction in different countries and their desire to expand jurisdiction. Taking this into account, the author tries to analyze this important problem about jurisdictional conflict, so as to seek proper approaches to solve jurisdictional conflicts in this field.The structure of this thesis consists of three parts as follows: preface, main body and conclusion.Among them, the preface illustrates the economic phenomenon of transnational insolvency has drawn wide range of attention of the international society, and thus become the new field urgently needs to be studied. Our country has also began to face more and more transnational insolvency cases, yet whether its legislation state or its theory study can't satisfy us, which is just the reason why the author chooses this topic, her purpose is to try to do something for the perfection of our theory and system on transnational insolvency.The main body has the following five chapters: Chapter 1 outlines the jurisdictional conflicts in transnational insolvency, and analyzes causes of them. Beginning with the concepts and meaning of the common foreign commercial and civil jurisdiction, further introduces the particularity and importance of jurisdiction in transnational insolvency, then expounds and proves the objective reality and inevitability of the conflicts in it though cases. Afterwards, the author expounds the normal standard of jurisdiction in transnational insolvency in different states recently, further studies the causes of conflicts in common foreign commercial and civil jurisdiction, and penetrates deeply the theoretic, legal and fundamental .causes of jurisdictional conflicts in transnational insolvency.Chapter 2 presents by contrast theory of extraterritorial effect, which is the theoretical basis of distribution of legislative principle of transnational insolvency jurisdiction. Through expounding and proving the development and good and bad of extraterritorial effect theories, which is the foundation of transnational insolvency, we can find out the root cause of jurisdictional conflicts in transnational insolvency, meanwhile, we will get a theoretic direction to dissolve the conflicts. The cooperative territoriality takes account of judicial sovereignty and native interest of different countries, and tries to dissolve the jurisdictional conflicts in transnational insolvency through seeking international cooperation, thus realizing the fundamental objective of bankruptcy.In chapter 3, under the guidance of cooperative territoriality, the author illustrates the dissolving methods of jurisdictional conflicts in transnational insolvency. To expound them deeply, this chapter begins with general principles and means of solving conflicts of foreign commercial and civil jurisdiction. Then from common to special thing, according with specialty of jurisdictional conflicts in transnational insolvency, emphasizes the problems in transnational insolvency arisen from jurisdictional conflicts, and discusses the dissolving methods in theory one by one.Chapter 4 sets forth the extant dissolving pattern of jurisdictional conflicts in transnational insolvency, including the ancillary proceedings under modified universalism, and main and secondary proceedings, parallel proceedings under cooperative territorialism, analyzes and compares them in turn, thus use for reference for the perfection of our pertinent legislation and jurisdiction.Chapter 5 is the domain legislative and judicial situation dealing with jurisdictional conflicts in transnational insolvency and some legislative suggestions. In this chapter, the current status of Chinese bankruptcy laws has been firstly addressed, with a focus on its legal blank on the transnational insolvency and unsatisfactory judicial practice. Then responds the former four chapters, finally puts proposition on perfecting Chinese relevant legislation and the resolving jurisdictional conflicts in transnational insolvency.The conclusion sums up the basic viewpoints of this thesis. Conflicts in fundamental interests determine the objective reality and inevitability of the conflicts in transnational insolvency jurisdiction, cooperative territoriality is the feasible and realistic approach to solute these conflicts. Our present legislative and judicial conditions need some reform. In legislation we can adopt the method embodied in the UNCITRAL Model Law, dividing jurisdiction into the main insolvency proceeding and secondary insolvency proceeding, meanwhile without restriction of parallel insolvency proceeding. Also shall we encourage the use of direct negotiation manner in judicial practice, such as the form of protocol, thus resolve the jurisdictional conflicts in transnational insolvency effectively.