Recognition And Enforcement Of Cross-border Insolvency Judgment

To protect the interests of domestic bankruptcy creditors,countries often apply pervasive doctrines to domestic bankruptcy procedures in the extraterritorial effects of insolvency proceedings whereas limited pervasive doctrines to foreign bankruptcy procedures.In terms of the recognition and enforcement of insolvency-related judgments,the Council regulation on insolvency proceedings and the UNCITRAL Model Law on Cross-Border Insolvency only stipulated on the recognition and enforcement of the judgments related to the starting of the insolvency procedures.The attitudes the countries adopted to the recognition and enforcement of the insolvency procedure impede the development of the international economy and restrict the flow of capital,goods and personnel.Each country adopts different methods on the recognition and enforcement of insolvency-related judgments as a result of lack of relevant regulations,which resulted in the unpredictability in insolvency cases.To make up this deficiency,the UNCITRAL Committee issued the Draft Model Law to clearly stipulate the international obligations of each country,the definition of insolvency-related judgments,the courts or authorities which have relevant jurisdictions,the Grounds to refuse recognition and enforcement of an insolvency-related judgment.In addition,the Draft Model Law,which is not a mandatory law in general sense for all member states,comes into effect through the enactment of a country and has great flexibility.And it's undeniable that the Draft Model Law represents the years of pursuit of the countries and indicates the approach of unified legislation in the future.Through studying the Draft Model Law,the author hopes to achieve thefollowing research objectives:(1)analyzing and studying the advanced features of the Draft Model Law;(2)Maximizing the interests of the domestic bankruptcy creditors by catching up with the trend of legislation on insolvency sector;(3)improving the legal system of insolvency in the PRC through revising our legislation in accordance with relevant international treaties.In the first part of this article,the author analyses the theory basis and the practice basis of the recognition and enforcement of the insolvency related judgments.Countries such as England once adopted the Comitas Gentium,which is defined much later by the United States Supreme Court in a decision denying recognition to a French judgment,to recognize and enforce the foreign judgments.And the other principle is reciprocity,which means that States will and should grant others recognition of judicial decisions only if,and to the extent that,their own decisions would be recognized.As the PRC has not participated in any international treaties or bilateral treaty related to insolvency,the PRC court can only apply laws on recognition and enforcement of foreign judgments in civil and commercial matters to recognize and enforce judgments related to insolvency.In conclusion,it's necessary for the competent authority to improve the legislation on the recognition and enforcement of judgments related to insolvency.In the second part of this article,through comparatively studying the EC No1346/2000 Regulation on insolvency proceedings,the(EU)No 1215/2012 Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters,Uncitral Model Law on Cross-border Insolvency and the Recognition and enforcement of insolvency-related judgments: draft model law,in combination with the legislations on bankruptcy in England,U.S.A.,Japan and Singapore,in order to protect the interests of the creditor and maintain the bankruptcy property to the greatest extent,it's necessary to clarify the insolvency judgments to be covered by a recognition and enforcement regime.For different kinds of insolvency judgment,different procedures for obtaining recognition and enforcement and grounds to refuse recognition shall be stipulated.In the last part of this article,the author calls for immediately improvement on the legislation on recognition and enforcement of cross-border judgment related to insolvency.Under the “Belt and Road” initiative,more and more Chinese corporations invest outside the PRC,which means that the assets of the corporationsare located in different countries.In the event that the one Chinese corporation falls into the insolvency process,whether the insolvency process started in the PRC and the judgments related to such insolvency decided by the PRC court could be recognized and enforced in the other countries depends on the attitude the PRC adopts in the international cooperation on the recognition and enforcement of cross-border judgment related to insolvency.The competent authority in the PRC can learn from the international treaties and the legislations in different countries to set up an integrity system of recognition and assistance of foreign insolvency process and recognition and enforcement of cross-border judgment related to insolvency.