Study On Cross-boarder Insolvency In The Context Of International Private Law

With the rapid growth of economic globalization and multinational enterprises, the unification of global economy has strengthened the influence and co-dependence of the economy of all countries in the world. It inevitably results in the fact that bankruptcy issue is no longer within any single country. Cross-boarder insolvency cases have attracted the attention of the academia and practitioners due to its large number and the great interest involved in. However, due to the differences in the political targets, economic interests, legal values and conditions between different countries, the legal provisions on cross-boarder insolvency of different countries are totally different from each other. As a result, it is difficult to coordinate cross-boarder insolvency matters on an international level. Attempts have been made in international legislation to achieve universalism in cross-boarder insolvency. However, due to the fact that insolvency matters are often concerned with the substantial economic interests and public interests of one country, it has been difficult for the countries to reach consensus and to make breakthrough in legislation.Considering the importance and emergency of improving the legal framework in terms of cross-boarder insolvency, this article intends to summarize and study the main international private law issues in cross-boarder insolvency, including the definition of cross-boarder insolvency, historical development, conflict of law, validity in foreign jurisdictions, choice of law, recognition and assistance, etc., and to mainly focus on the legal provisions and practice of cross-boarder insolvency in our country, so as to identify the dilemma in legislation and to conduct pilot study in the relevant practice.The author holds that, in terms of legislation, the historical legislation of our country has always upheld the principle of territory in the issue of the validity of insolvency orders in foreign jurisdiction. However, in some more developed areas, changes had been made to the principle of territory. After the promulgation of Enterprise Insolvency Law, the validity of insolvency orders in foreign jurisdiction has been determined, which is relatively closer to universalism in theory with certain restrictions. In terms of judicial practice, judging from the cases happened before and after the Enterprise Insolvency Law, the courts of our country are of the view that the insolvency orders made by the courts are also valid in foreign jurisdictions. On the other hand, the courts of our country still follow the principle of territory in determining the validity of the insolvency orders made by foreign courts on the debtor's assets in China. This approach might be regarded as imposing different criteria on the same matter and is not compliant with the trend of international cooperation in cross-boarder insolvency. The author holds that the said problem is caused by the fact that the relevant law in itself has caused great uncertainty to the recognition and enforcement of insolvency orders made by foreign courts. The author further holds that, in terms of legislative framework, our country needs to further improve and unify the relevant laws in relation to cross-boarder insolvency, including providing more specific provisions in the Enterprise Insolvency Law or issuing corresponding judicial interpretations, etc.