Globalized Cross-Border Insolvency Law: The Roles Played by China

Insolvency Law ◽

Cross Border ◽

Foreign Judgment ◽

Judicial Assistance ◽

First Time

AbstractThis study empirically investigates China’s participation in the globalized cross-border insolvency collaboration system. It is the first time for the development of China’s cross-border insolvency law to be examined against the background of private international law on foreign judgment recognition and enforcement. The findings of this article reveal that foreign bankruptcy representatives face considerable difficulties in satisfying the treaty and reciprocity requirements when seeking judicial assistance from China, and that local protectionism in favour of China’s state-owned and state-linked companies undermines foreign bankruptcy representatives’ confidence in approaching China’s courts for support. Although there are several court recognitions of foreign bankruptcy judgments in China, this article finds that they are only used to acknowledge the legal status of foreign bankruptcy representatives to meet the demands of government authorities; Chinese courts have not taken a substantial step in recognizing a foreign bankruptcy judgment so as to bar individual creditors’ action in the interest of a foreign bankruptcy proceeding. On the contrary, for Chinese bankruptcy representatives seeking assistance abroad, they could take advantage of the liberal judicial infrastructure, especially of some advanced jurisdictions, to obtain recognition and relief.

The Characterization of Pre-insolvency Proceedings in Private International Law

European Business Organization Law Review ◽

10.1007/s40804-020-00176-x ◽

2020 ◽

Vol 21 (4) ◽

pp. 855-894 ◽

Cited By ~ 1

Author(s):

Irit Mevorach ◽

Adrian Walters

Keyword(s):

International Law ◽

Contract Law ◽

Insolvency Law ◽

Private Ordering ◽

Cross Border ◽

Unique System ◽

Financial Restructuring ◽

Insolvency Proceedings

AbstractThe decade since the financial crisis has witnessed a proliferation of various ‘light touch’ financial restructuring techniques in the form of so-called pre-insolvency proceedings. These proceedings inhabit a space on the spectrum of insolvency and restructuring law, somewhere between a pure contractual workout, the domain of contract law, and a formal insolvency or rehabilitation proceeding, the domain of insolvency law. While, to date, international insolvency instruments have tended to define insolvency proceedings quite expansively, discussion of the cross-border implications of pre-insolvency proceedings has barely begun. The question is whether pre-insolvency proceedings should qualify as proceedings related to insolvency for the purpose of private international law characterization. The risk is over-inclusivity of cross-border insolvency law, which, where it is based on universality and unity, might defeat contractual expectations. This article argues, however, that we should be slow to exclude pre-insolvency proceedings from cross-border insolvency law: these proceedings are initiated in the zone of insolvency, their effectiveness depends on a statutory mandate and not purely on private ordering, they interact and intersect with formal proceedings, and can benefit from the unique system developed by cross-border insolvency law. We suggest, though, that modified universalism (the leading norm of cross-border insolvency) and international insolvency instruments, should, and are able to, adjust to the peculiarities of pre-insolvency proceedings to address concerns about inclusivity and accommodate pre-insolvency proceedings adequately.

Chronology of Practice: Chinese Practice in Private International Law in 2019

Chinese Journal of International Law ◽

10.1093/chinesejil/jmaa032 ◽

2020 ◽

Author(s):

H E Qisheng

Keyword(s):

Intellectual Property ◽

International Law ◽

Public Order ◽

Punitive Damages ◽

Res Judicata ◽

Force Majeure ◽

International Transport ◽

Judicial Assistance

Abstract This survey contains materials reflecting the practice of Chinese private international law in 2019. First, this paper describes the judiciary’s caseload: Chinese courts decided some 17,000 foreign-related civil and commercial cases, 16,000 maritime cases and 9,648 requests for judicial assistance in 2019. Regarding changes in the statutory framework of private international law, four legislative acts, one set of Regulations and six Supreme People’s Court (SPC) Judicial Interpretations were adopted or amended in 2019 on investment contracts, action preservation in intellectual property, punitive damages, etc. Second, eight typical cases on jurisdictional issues are selected, including jurisdiction clauses, parallel proceedings, and res judicata. Third, seven new representative cases on choice of law relating, in particular, to international transport, force majeure, gambling debts and public order, are examined. Fourth, five cases on the recognition and enforcement of foreign judgments and one SPC Opinion in favour of presumed reciprocity are briefly examined. Finally, this paper also covers seven key cases which reflect the latest development in Chinese private international law on other procedural issues, such as service of process abroad and authentication, and three cases on international arbitration (including the first decision rendered by the China International Commercial Court).

Cross-border Insolvency

The Framework of Corporate Insolvency Law ◽

10.1093/oso/9780198805311.003.0022 ◽

2017 ◽

Author(s):

Hamish Anderson

Keyword(s):

International Law ◽

Insolvency Law ◽

Choice Of Law ◽

Cross Border ◽

General Law ◽

Insolvency Proceedings

In the practice of insolvency law, the usual challenge is to work out the answer to a problem as a matter of general law and then to factor in the consequences of one or more of the parties being insolvent. In cross-border insolvency cases, this exercise can be made considerably more complicated by choice of law issues. Ultimately, cross-border insolvency questions are all questions of private international law which are determined in accordance with specific rules where applicable or otherwise in accordance with general principles. The aims are to recognize properly grounded foreign insolvency proceedings, to act in aid of them where appropriate, to ensure that English proceedings will achieve extra-territorial recognition where necessary, and thereby to achieve fairness for all creditors everywhere by avoiding conflicts and confusions between jurisdictions.

Challenge and Opportunity: the ALI/III Global Principles Project

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2008/v11i1a2750 ◽

2017 ◽

Vol 11 (1) ◽

pp. 1

Author(s):

IF Fletcher

Keyword(s):

International Law ◽

South African ◽

International Project ◽

Current Debate ◽

Insolvency Law ◽

Cross Border ◽

The World ◽

American Law ◽

Global Principles

This article deals with an international project to establish the extent to which it is feasible to achieve a worldwide acceptance of the Principles of Cooperation among the NAFTA Countries together with the Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases. This contribution explains the process whereby the American Law Institute and the International Insolvency Institute (1) developed principles of cooperation with regard to cross-border insolvency; (2) established acceptance of these principles in jurisdictions across the world, subject to any necessary local modifications; and (3) obtained the endorsement of leading domestic associations, courts, and other groups in those jurisdictions. This article may contribute to the development the South African cross-border insolvency law. The inclusion of the challenges of harmonisation of private international law is also contributing to current debate.

The Judgments Project of the Hague Conference on Private International Law: A Way Forward for a Long-awaited Solution

Diversity and Integration in Private International Law ◽

10.3366/edinburgh/9781474447850.003.0012 ◽

2019 ◽

pp. 176-196

Author(s):

Fabrício B. Pasquot Polido

Keyword(s):

International Law ◽

End Users ◽

Multiple Criteria ◽

Minimum Standards ◽

Policy Choices ◽

Cross Border ◽

The Hague ◽

Further Development

This chapter discusses distinct foundational benchmarks and inspirational ideas underlying the diplomatic negotiations leading to the adoption of the Convention on Recognition and Enforcement of Foreign Judgments on Civil or Commercial Matters by the Hague Conference of Private International Law in June 2019 and conclusion of a historical phase of the ‘Judgments Project’. It argues that the establishment of a ‘global facilitated regime’ for circulation of foreign judgements at multilateral level still remains as one of the utmost policy choices for further development of private international law related institutions and their interplay with cross-border civil and commercial litigation. The successful outcomes of the Judgment Project might be tested under multiple criteria, such as minimum standards of uniformity - with diversity being preserved at domestic normative levels-, predictability and a balanced framework for end-users in transnational litigation.

Mimosmluvní závazkové poměry s mezinárodním prvkem z pohledu české autonomní úpravy

AUC IURIDICA ◽

10.14712/23366478.2021.27 ◽

2021 ◽

Vol 67 (3) ◽

pp. 97-110

Author(s):

Kateřina Holečková

Keyword(s):

International Law ◽

International Level ◽

International Jurisdiction ◽

Applicable Law ◽

Cross Border ◽

Contractual Obligations ◽

Border Elements

Private International Law is nowadays, to a large extent, regulated by European and international law and the scope of the application of autonomous national law is therefore limited. However, in case of non-contractual obligations with cross-border elements, this scope is still relatively broad, as certain matters are excluded from the regulation on the European and international level. The aim of this article is to analyze the regulation of non-contractual obligations with cross-border elements under the Czech Act on Private International law, namely its regulation of international jurisdiction, applicable law, and the recognition and enforcement of foreign judgements.

Book ReviewsBook ReviewsBerendsAndréMinistry of Justice, The Netherlands122000473381390FletcherI.F., Insolvency in Private International Law: National and International Approaches, Clarendon Press, Oxford 1999, 465 pp. ISBN 019-825864-XCopyright © T.M.C. Asser Press 20002000T.M.C. Asser PresspdfS0165070X00001066a.pdfdispartBook Reviews1.See, for instance, T.M. Bos, Grensoverschrijdend faillissementsrecht in Europees perspectief diss. Vrije Universiteit Amsterdam (2000) (with summary in English: ‘Cross-border Bankruptcies in European Perspective’).2.Philip St. SmartJ., Cross-border Insolvency, 2nd edn. (London, Butterworths 1998).3.For instance, at a colloquium, organised by Insol and UNCITRAL, held in Toronto in 1995, an Expert Committee's Report was distributed (not published), in which six categories of states were distinguished. Category 1 contained the most open states, category 6 the states that were the most closed. The Netherlands and Japan were the only two states in category 64.One should bear in mind that the term ‘bankruptcy’ under English law only refers to an insolvency proceeding for natural persons5.See CooperN. and JarvisR., Recognition and Enforcement of Cross-Border Insolvency (Chichester, John Wiley and Sons Ltd. 1996), in which the laws on this point of 36 countries are described.6.The word ‘anglo-centric’ is used by Fletcher himself (p. 108), in a rather pejorative way7.Initiative of the Federal Republic of Germany and the Republic of Finland with a view to the adoption of a Council Regulation on insolvency proceedings, submitted to the Council on 26 May 1999, Official Journal C 221, 3 August 1999, pp. 8 et seq.8.Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings

Netherlands International Law Review ◽

10.1017/s0165070x00001066 ◽

2000 ◽

Vol 47 (03) ◽

pp. 381

Author(s):

André Berends

Keyword(s):

International Law ◽

Official Journal ◽

Federal Republic Of Germany ◽

Cross Border ◽

The Republic ◽

Council Regulation ◽

Insolvency Proceedings ◽

Open States

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 40 Vietnam: Vietnamese Perspectives on the Hague Principles

Choice of Law in International Commercial Contracts ◽

10.1093/law/9780198840107.003.0040 ◽

2021 ◽

Author(s):

Doan Duc Luong ◽

Nguyen Thi Hong Trinh

Keyword(s):

International Law ◽

Civil Procedure ◽

Civil Code ◽

National Legislation ◽

Procedure Code ◽

The Future ◽

The Hague ◽

Judicial Assistance

This chapter reflects on Vietnamese perspectives on the Hague Principles. In Vietnam, the sources of private international law in respect of international commercial contracts includes the bilateral judicial assistance treaties between Vietnam and related countries, among which eight treaties contain conflict rules for the content of the contract and eleven treaties contain conflict rules for the parties’ capacity in entering the contract. As for national legislation, which is established in Vietnam as the major source of private international law, the Vietnamese Civil Procedure Code (VCPC) 2015 provides for the procedures regarding civil disputes with foreign elements (Part VIII) and the recognition and enforcement of the decisions of foreign courts and the decisions of foreign arbitrators in Vietnam (Part VII). At the same time, the Vietnamese Civil Code (VCC) 2015 contains Part V which regulates the law applicable to civil relations involving foreign elements. As far as the Hague Principles are concerned, this is being addressed in the drafting stage of Part V of the VCC 2015 (on conflict rules). The influence of the Hague Principles on the Vietnamese legislature may be stronger when they are more well known in the future.

Cross-Border Intellectual Property Enforcement

10.1093/oxfordhb/9780198758457.013.28 ◽

2017 ◽

Author(s):

Eun-Joo Min ◽

Johannes Christian Wichard

Keyword(s):

Intellectual Property ◽

International Law ◽

Alternative Dispute Resolution ◽

Global Environment ◽

Applicable Law ◽

Cross Border ◽

Territorial Rights ◽

Local Courts

This chapter identifies national and regional approaches adopted to ensure that intellectual property (IP) rights are enforceable in a global environment constituted by territorial rights that rely on local courts. It discusses reconsideration and recalibration of the private international law (PIL) rules that govern IP relationships in relation to jurisdiction, applicable law and recognition and enforcement. The chapter also explores the emergence of new fora for cross-border IP enforcement, through either trade or investment arrangements or privately designed alternative dispute resolution (ADR) mechanisms. It concludes by underscoring the continued relevance of the territoriality of IP rights, and the importance of coherence and mutual consistency between the different legal systems and regimes of cross-border IP enforcement.

Diversity and Integration in Private International Law

10.3366/edinburgh/9781474447850.001.0001 ◽

2019 ◽

Keyword(s):

South America ◽

International Law ◽

Value Systems ◽

Diverse Range ◽

Cross Border ◽

Wide Range ◽

Depth Analysis ◽

And Shifts ◽

Substantive Law

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, with its focus on the ever-increasing cross-border mobility of individuals. Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios, and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. Bringing together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions in Europe and South America, this edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. The book provides in-depth analysis of the role of private international law in dealing with legal diversity across a diverse range of topics and jurisdictions.