Assessment of International Instruments

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
Decision Making ◽  
International Law ◽  
Financial Institutions ◽  
Customary International Law ◽  
Cross Border ◽  
Normative Framework ◽  
Enterprise Groups ◽  
The Cross ◽  
Model Law ◽  
International Instruments

This chapter assesses the key international instruments for cross-border insolvency, primarily the Model Law on Cross-Border Insolvency (the MLCBI), and the related cross-border aspects of insolvency addressed in the Insolvency Standard. It also tentatively analyses the developments of additional instruments regarding enterprise groups and the enforcement of insolvency-related judgments. It considers how the MLCBI and complementary instruments fit into the normative framework proposed in the book. It asks to what extent the instruments follow modified universalism norms, thus contributing to the crystallization and development of customary international law (CIL). It also assesses: the choice of instrument; whether there are any issues with the design of the instruments taking into account the bounds on decision-making; and whether the instruments support the required levels of targeted harmonization to incentivize compliance. This chapter also assesses the specific instruments and measures that attempt to address the cross-border insolvency of multinational financial institutions (MFIs), particularly the Key Attributes, supporting principles, and contractual solutions.

scholarly journals Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?

2021 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Normative Framework ◽  
New Instrument ◽  
Enterprise Groups ◽  
Model Law ◽  
Insolvency Proceedings ◽  
International Instruments

AbstractIn recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

A Normative Framework for Promoting Compliance

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
Decision Making ◽  
International Law ◽  
Soft Law ◽  
Optimal Solutions ◽  
Customary International Law ◽  
Cross Border ◽  
Normative Framework

This chapter completes the proposed normative framework for cross-border insolvency. It considers the problem of compliance with a cross-border insolvency system by countries and implementing institutions. The previous chapters have shown how the choice and use of certain international legal sources, such as customary international law (CIL), can strengthen the system, close gaps, and address biases that may otherwise impede the choices of optimal solutions. Yet, notwithstanding the pervasiveness and behavioural force of CIL, the observance of the norms is not guaranteed. Written instruments, even if precise and comprehensive, and designed effectively, do not assure compliance either. Even where so-called soft law is in fact hard in important ways, countries might still underperform. This chapter suggests how compliance can be induced, and discusses which measures can be more, or less effective in that regard, including in view of decision-making constraints.

Conclusion

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Market Conditions ◽  
Customary International Law ◽  
Cross Border ◽  
Additional Work ◽  
The Future ◽  
The Cross ◽  
Global And Local

This chapter provides a summary and concluding remarks regarding the future of cross-border insolvency. It argues based on the analysis in the previous chapters that a regime that fits current market conditions and increases global and local welfare is within reach, and is founded on the emerging norms of modified universalism. Persisting territorial inclinations should not cast a shadow over the desirability of modified universalism. Rather than yielding to territorialist inclinations, international actors should strengthen modified universalism by attempting to close gaps in the system to reflect agreed norms and by working to overcome negative biases in favour of positive ones. Modified universalism can crystallize into binding law in the form of customary international law (CIL), which can close gaps and overcome biases. The system can further foster compliance with the norms through a range of measures. While cross-border insolvency is already governed by proper instruments, certain gaps remain. It is suggested that there is room for additional work on the instruments and generally on strengthening the cross-border insolvency system. Future reform should continue to be multifaceted, with different roles assigned to different actors.

Criminal Jurisdiction—Concurrent Jurisdiction, Sovereignty, and the Urgent Requirement for Coordination

2021 ◽  
pp. 81-114
Author(s):  
Julia Hörnle
Keyword(s):  
International Law ◽  
Sufficient Evidence ◽  
Double Jeopardy ◽  
Criminal Courts ◽  
Criminal Jurisdiction ◽  
Cross Border ◽  
Ne Bis In Idem ◽  
Limited Application ◽  
The Cross ◽  
Conflicts Of Jurisdiction

Chapter 4 provides an incisive introduction to criminal jurisdiction and the internet, setting the scene for the chapters on jurisdiction of the criminal courts (Chapter 5) and investigative jurisdiction (Chapter 6). It explains the concurrency of criminal jurisdiction in international law and analyses the problems arising. In particular, there are two main conflicts of jurisdiction: first, the multiple, overlapping claims of jurisdiction between several states and the risk of multiple prosecutions for the same crime (or no prosecutions, as no state has sufficient evidence or motivation; second, jurisdictional overreach where conduct is lawful in one country, but a criminal offence in another country who wishes to prosecute, potentially causing jurisdictional overreach and spill-over effects. The chapter begins by setting out the grounds of jurisdiction under international law. An examination of the cross-border implications of cybercrime follows, distinguishing three discrete aspects of the cross-border nature of cybercrime and analysing the nature of jurisdictional conflicts under the lens of territoriality and connecting factors. It analyses how a better coordination of jurisdictional claims might be achieved under comity and reasonableness principles, and coordination under EU law, such as the Eurojust Guidelines and the EU Framework Decision. Finally, it critically analyses the ambit of double jeopardy and the ne bis in idem principles and their limited application. Conflicts of criminal jurisdiction, and the potential of multiple prosecutions of defendants for the same offence, call for greater international cooperation between states and coordination rules between different legal orders. However, the development of coordination rules in respect of national criminal jurisdiction is in its infancy.

The Cross-Border Protection of Adults

2015 ◽  
Author(s):  
Richard Frimston
Keyword(s):  
International Law ◽  
Theory And Practice ◽  
Roman Law ◽  
Private International Law ◽  
Cross Border ◽  
The Cross ◽  
Adult Protection

The cross-border protection of adults is an area of Private International Law, in which theory and practice may very often be in rather different places. In Chapters 2 has set out the broad Private International Law concepts likely to be encountered in adult protection. Chapters 3 describes the history and development from Roman law of internal law relating to the protective regimes that have existed and evolved for adults with an impairment and makes some comparisons.

scholarly journals ASPECTS OF THE REGULATION OF CROSS-BORDER INSOLVENCY IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Howard Chitimira
Keyword(s):  
South Africa ◽  
Comparative Analysis ◽  
Future Prospects ◽  
Cross Border ◽  
The Cross ◽  
Overview Analysis ◽  
Insolvency Proceedings ◽  
International Instruments

This article analyses the regulation of cross-border insolvency under the Cross-Border Insolvency Act 42 of 20001 in order to examine the adequacy of such regulation as regards to the enforcement of insolvency proceedings in South Africa and other relevant jurisdictions. To this end, the paper provides an overview analysis of the regulation and/or enforcement of insolvency proceedings under the Cross-Border Insolvency Act. Moreover, where possible, the paper also provides a comparative analysis of selected aspects of the regulation and/or enforcement of insolvency proceedings under the Cross-Border Insolvency Act and those that are provided under the Insolvency Act 24 of 1936 and other related international instruments. This is done to expose the challenges and future prospects of the regulatory and enforcement framework under the Cross-Border Insolvency Act in South Africa.

Hot Pursuit

2016 ◽  
Author(s):  
Bill Gilmore
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Use Of Force ◽  
The State ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Cross Border ◽  
Legal Justification ◽  
The Right ◽  
Self Defence

This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.

The Future of Cross-Border Insolvency

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Financial Institutions ◽  
Multinational Enterprises ◽  
Global Financial Crisis ◽  
Cross Border ◽  
The Future ◽  
Global Welfare ◽  
The Global Financial Crisis ◽  
The Right ◽  
The Impact

This book interrogates the current cross-border insolvency regime and sets out a pattern to improve its future. In recent decades, and especially since the global financial crisis, a number of important initiatives have focused on developing effective solutions for managing the insolvency of multinational enterprises and financial institutions. This book takes stock of the varying success of previous policy, and identifies the gaps and biases that could be bridged by employing a range of strategies. The book first sets out the theoretical debates regarding cross-border insolvency and surveys the strengths and weaknesses of the prevailing method, ‘modified universalism’, synthesizing divergences into a rubric for both commercial entities and financial institutions. Adhering to these norms more robustly, the book argues, would enhance global welfare and produce the best outcomes for businesses and institutions. Drawing upon sources from international law as well as behavioural and economic theory, the book considers how to translate modified universalism into binding international law, how to choose the right instrument for cross-border insolvency, the impact instrument design has on decisions and choices, and the means to encourage compliance. In particular, the book proposes measures that could potentially overcome, or at least take into account, behavioural biases in decision-making in order to create a system that works for businesses, and offers a blueprint for the future of cross-border insolvency.

Hague 35: An Assessment and the Future

2015 ◽  
Author(s):  
Alex Ruck Keene
Keyword(s):  
Decision Making ◽  
Best Practice ◽  
Legal Problem ◽  
Perceived Need ◽  
Cross Border ◽  
Decision Making Capacity ◽  
The Future ◽  
The Cross ◽  
Domestic Law

In many ways, Hague 35 was—and to some extent remains—a treaty ahead of its time. Whilst the cross-border protection of children has been recognized as a social, political and legal problem for well over a generation, the cross-border protection of adults has only slowly been rising up the agenda, notwithstanding the very real problems that are already experienced upon the ground. The framers of the Convention, therefore, had a real opportunity to set in place frameworks that could promote best practice between Contracting States which would, in turn, have the potential to bring about changes to the domestic law of those states. A practical example of the benefits of this can already been seen in relation to Ireland where a significant driver in the passage of the Assisted Decision-Making (Capacity) Bill has been the perceived need radically to modernize the treatment of those with impaired capacity in that state so as to be able to ratify the Convention.

The International Dimension: Cross-border Groups

2016 ◽  
Author(s):  
Michael Schillig
Keyword(s):  
Global Financial Crisis ◽  
Applicable Law ◽  
Cross Border ◽  
The Us ◽  
Key Issues ◽  
The Cross ◽  
Model Law ◽  
The Global Financial Crisis ◽  
Financial Groups ◽  
Group Law

The difficulties associated with the supervision and failure resolution of cross-border financial groups were among the key issues that came into renewed focus as a result of the global financial crisis. The cross-border dimension affects the recovery and resolution process in its entirety from the initial planning phase right through to liquidation. The chapter summarizes the elements of cross-border group law mentioned in previous chapters. It looks briefly at the US framework and the changes introduced through the Dodd–Frank Act. It discusses international jurisdiction of authorities and courts, the applicable law that governs proceedings, and the recognition and effects of foreign proceedings, in particular, in accordance with Directive 2001/24/EC on the reorganization and winding up of credit institutions and investment firms and the UNCITRAL Model Law on Cross-Border Insolvency. It also analyses the new European framework for co-operation in the cross-border group resolution context.

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