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Conflict Of Laws For Cross-border Bank Insolvency Law Applies

Posted on:2010-11-26Degree:MasterType:Thesis
Country:ChinaCandidate:L Y ZhuFull Text:PDF
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With the development of the world's financial liberalization, securities markets made a rapid expansion, different types of financial products and financial derivatives had been launched, the commercial banks undertook a mixed operation; there are more and more business cross between the banks and other financial institutions. With the influence of financial liberalization tide, many countries loosened their financial supervision and leaded to the accidents occur frequently in the worldwide financial market, a financial crisis sweeping the whole world occurred under this background. As the most active and most powerful international financial services institutions in the world, transnational banks exert a great impact on the stability and security of the global financial market. During the course of operation, the transnational banks encounter the credit risk, market risk, liquidity risk, national risk and legal risk. The issues of cross-border insolvency on the private law and the issues of financial supervision on the public law triggered by the transnational banks insolvency shall be paid a high attention.This thesis focuses on the issues about the conflicts of laws and the law application in transnational bank insolvency, and emphasizes on the problem how different legislation and supervision approaches in different countries may lay different influences on the extraterritorial effect, jurisdiction and the law application of some special substantiality issues on transnational bank insolvency. This thesis mainly adopts the comparative research approach to discuss the results of cross-border insolvency legislation as well as the results of financial supervision cooperation of the international communities, and made a deep analysis on the main procedure and substantiality problems of bankruptcy procedure through the discussion of transnational bank insolvency legislation and judicial practice.This article is divided into four chapters. The elementary problem transnational bank insolvency involved were summarized in Chapter one. In this part, the author explained the concept of cross-border insolvency, analysis the transnationality and the specificity of transnational bank insolvency, as well as commented on the legislative mode and legal sources of transnational bank insolvency.Chapter Two is dedicated to study on the most important conflicts of jurisdiction conflict and the extraterritorial effects conflict from the large number of conflicts of the cross-border insolvency. The jurisdiction conflict is divided into two parts which are judicial jurisdiction conflict and supervision jurisdiction conflict in order to explain how the supervision jurisdiction affects the judicial jurisdiction mode. In addition, the author introduced traditional theories on universalism, territorialism and the burgeoning theory on new pragmatism, and made comments on them. The author also summarized the achievements of legislation on cross-border insolvency in theinternational community--UNCITRAL model law, EU insolvency regulation and EU winding-up Directive in order to clarify the position on adhere to the modified universality doctrine and choose a Main-Secondary proceedings approach in the transnational bank insolvency.Chapter Three is study on law application in transnational bank insolvency. The author explained that there are some special substantiality problems in the procedure of transnational bank insolvency, each problem should be applied to the law of different countries under different conflict rules, such as the law application of insolvency properties, the priority liquidation order of the insolvency credit, and the law application of recalling right, set off right of transnational bank insolvency, etc.Chapter Four looks back into the domestic, comment and analysis the advantage and disadvantage aspects of legislation and judicial practice issues, as well as the supervision on the transnational bank in our country. Draw on mature legislative norms in the international community as well as bilateral and multilateral cooperation mode in order to proposed specific legal countermeasures on the way to improve the related regulations in our country.
Keywords/Search Tags:Transnational bank, Cross-border insolvency, Financial supervision, Conflicts of law, Law application
PDF Full Text Request
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