Study On The Jurisdictional Issues In Transnational Insolvency

Resolving the jurisdictional issues in transnational insolvency is the premise and foundation of resolving all transnational insolvency issues. Because jurisdiction determines not only the choice of law, but also the recognition and enforcement of judgment, it is very significant to the parties. The reasons of the jurisdictional conflicts in transnational insolvency are: the complexity of transnational insolvency cases, remarkable differences existing in the laws of different countries, the protection of judicial sovereignty, the adoption of concurrent jurisdiction and the conflicts of interests.There are three jurisdictional standards of transnational insolvency, namely: the jurisdictional standards of the apanage and the citizenship as well as the rule of agreement on the election of forum. Being the traditional rules to resolve the jurisdictional conflicts in the international civil and commercial affairs,"principle of jurisdiction by the court of first acceptance"and"forum non convenient"can be used in transnational insolvency. Moreover, international cooperation is very important to resolve jurisdictional conflicts. By mutual compromise and efficient cooperation, jurisdictional conflicts can be reduced.The extant dissolving patterns of jurisdictional conflicts in transnational insolvency include the dissolving pattern of jurisdictional conflicts of the Insolvency Law of the USA, the European Council Regulation on Insolvency Proceedings and the UNCITRAL Model Law on Transnational Insolvency. As for the solutions of the jurisdictional conflicts, four methods are mentioned: judicial abstention to jurisdiction of every country, the integration of transnational insolvency law, bilateral or multilateral treaties between countries, direct negotiation of every case to resolve jurisdictional conflicts in transnational insolvency. By analyzing the cases in the judicial practice in our country, we can see the vacancy in legislation on jurisdiction of transnational insolvency in China. The lack of relevant legislation causes trouble in judicial practice. Hence, the author put forward some suggestions in legislation, including putting the transnational insolvency cases under centralized jurisdiction, differentiating the major insolvency proceedings and minor insolvency proceedings to ascertain jurisdiction.