Research On Conflict And Coordination Between Extraterritorial Effect And Ship Arrest In Cross-border Insolvency Of Shipping Enterprises

In recent years,the continued downward trend of the economy has affected the volume of world trade and cargo transportation.In addition to the overcapacity of ships,the international shipping industry is facing a crisis of capital shortage and business decline.Some shipping companies have to choose bankruptcy or reorganization procedures to get rid of operating difficulties In 2016,as the world's leading shipping company,HanJin shipping company entered the bankruptcy reorganization process in South Korea,which becoming the world's largest international shipping company bankruptcy event so far.It is precisely because of the transnational nature and capital intensity of shipping enterprises,the large amount of bankruptcy targets involved will directly lead to large-scale foreign-related litigation,and have a huge impact on the global economical trade order and normal shipping order.As the main property of shipping enterprises,ships naturally become one of the bankruptcy properties of shipping enterprises.The cross-border bankruptcy of shipping enterprises not only involves the creditor and debt relationship in the general bankruptcy,but also is related to the maritime business system about ship arrest and maritime lien,etc.Therefore,the application of ship arrest in cross-border bankruptcy becomes a urgent problem,which makes the handling of cross-border bankruptcycases of shipping companies more complicated.How to coordinate the relationship between cross-border bankruptcy and ship seizure,maximize the value of the debtor's assets and enable all creditors including maritime creditors to get fair payment have become a widely discussed and urgent problem in the bankruptcy law and maritime law in recent years.This article points out the characteristics of the cross-border bankruptcy of shipping enterprises,as a special type of enterprises,from the three aspects of the complexity of bankruptcy creditor's rights,the liquidity of bankruptcy property and the particularity of bankruptcy property preservation,and focuses on the comparative analysis of the most typical preservation system in maritime law——ship arrest procedure.And comparing and analyzing the concept,legal nature and provisions of ship arrest procedure in different legal systems,so as to further lead to the application of ship arrest measures in the cross-border bankruptcy of shipping enterprises.There are three important permutations in the cross-border bankruptcy cases of shipping enterprises involved in ship arrest.The first is the commencement of admiralty arrest or attachment proceedings;The second is the opening of insolvency proceeding in the debtor's COMI(center of main interests);And the third is recognition of insolvency proceedings as a foreign main proceeding(FMP).In practice,the most common applicable problem of ship arrest occurs before the debtor's bankruptcy procedure.As the matter of fact,the essence of the application of ship arrest in the practice of cross-border bankruptcy is the whether the "automatic stay" of bankruptcy laws have extraterritorial effect under maritime field and the effective range of assets.On the one hand,the bankruptcy law takes the debtor's bankruptcy property for the creditor's fair repayment as the legislative purpose;On the other hand,maritime law emphasizes the special protection of maritime creditors.The difference in legislative purposes between the bankruptcy law and the maritime law is the essential reason for the application of the of ship arrest in cross-border bankruptcy.From the perspective of the recognition of rights,the differences between the recognition of ship's creditor's rights and bankruptcy creditor's rights in various countries and thelegislative and judicial practices of the order of compensation bring uncertainty to the realization of the rights,and also cause difficulties in the implementation of international judicial assistance in the cross-border bankruptcy of shipping enterprises.At the same time,compared with general foreign civil and commercial bankruptcy cases,cross-border bankruptcy cases of shipping enterprises often involve special maritime rules and maritime litigation procedures,so the application of ship arrest is inevitably affected by cross-border bankruptcy jurisdiction.At present,there are three main principles to determine the jurisdiction of bankruptcy cases: universalism,territorialism and new pragmatism.Universalism is based on the jurisdiction of the sole or principal bankruptcy court;Territorialism emphasizes that national courts independently apply their own laws to the management and distribution of bankruptcy property.The new pragmatism forms the modified universalism and cooperative territorialism in the above two principles of determining jurisdiction and focus on the most effective and economic management of the debtor's property.At present,there is no legislation specific to cross-border bankruptcy of shipping enterprises in international and domestic laws.As a special type of cross-border bankruptcy,cross-border bankruptcy of shipping enterprises is regulated by relevant legal systems concerning the application of ships.Among them,the typical international legal framework and legislative provisions on cross-border bankruptcy are the United Nations model law and the Regulation(EU)of the European Parliament and of the Council on insolvency proceedings(recast),which stipulate the distinction between primary and secondary bankruptcy procedures,the recognition and relief of foreign bankruptcy procedures and international cooperation on cross-border bankruptcy.Through comparative study of the typical cases and legislation of cross-border bankruptcy of shipping enterprises involved in ship arrestment in various countries,this article pointed out that there are still defects and deficiencies in the legislation and judicial practice on the application of ship arrestment in China.Drawing on the international legislative framework and other countries' beneficial judicial practice experience,this paper puts forward relevant suggestions from the aspects of the construction of cross-border bankruptcy system,the improvement of maritime and commercial systems,and the development of international judicial cooperation,including filling the legislative gaps of cross-border bankruptcy,defining standards of jurisdiction,relaxing the application of the principle of reciprocity,and promoting international cooperation in cross-border bankruptcy cases,so as to reasonably coordinate the interests of all parties involved in cross-border bankruptcy of shipping enterprises.