scholarly journals UNCITRAL Model Law on Cross Border Insolvency Sebagai Model Pengaturan Kepailitan Lintas Batas Indonesia dalam Integrasi Ekonomi ASEAN

2019 ◽  
Vol 1 (2) ◽  
pp. 323-346
Author(s):  
Dicky Moallavi Asnil
Keyword(s):  
Economic Integration ◽  
East Asian ◽  
Bankruptcy Law ◽  
Insolvency Law ◽  
Cross Border ◽  
Integration Program ◽  
The World ◽  
Asean Countries ◽  
Model Law ◽  
Surrounding Areas

The economic integration program between the members of Association of South East Asian Nations (ASEAN) and surrounding areas that trancends national borders and citizenship potentially creates the cross borders bankrupcy problems. The problem was born when the debtor undergoing bankruptcy process has assets abroad,where the bankruptcy proceedings are hampered by the laws of the country concerned. In adition, Indonesia and ASEAN do not yet a bankruptcy regulation that binds its member states in the settlement of this problems. UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment is a model of cross-border insolvency law made by The United Nations which aims to be a reference of the world countries in the business of modernization and harmonization of national bankruptcy law respectively. This article shows that UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment which adheres to this flexibility principle can be used as a solution to modernize and harmonize bankruptcy law of ASEAN countries, especially Indonesia. Abstrak Program integrasi ekonomi antar negara anggota Association of South East Asian Nations (ASEAN) dan sekitarnya yang melampaui batas-batas negara dan kewarganegaraan saat ini berpotensi melahirkan permasalahan kepailitan lintas batas. Permasalahan itu lahir pada saat debitor yang menjalani proses kepailitan di suatu negara memiliki aset di luar negeri, di mana proses kepailitan terhadap aset pailit itu terhambat oleh hukum yang berlaku di negara bersangkutan. Indonesia dan ASEAN sampai saat ini belum memiliki peraturan kepailitan yang mengikat negara anggotanya dalam penyelesaian permasalahan ini. UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment adalah sebuah model hukum kepailitan lintas batas yang dibuat oleh Persatuan Bangsa-Bangsa yang bertujuan untuk menjadi rujukan negara-negara dunia dalam usaha modernisasi dan harmonisasi hukum kepailitan nasional masing-masing. Artikel ini menunjukkan bahwa UNCITRAL Model Law on Cross Border Insolvency with Guide to Enactment yang menganut prinsip fleksibilitas dapat dijadikan solusi dalam upaya melakukan modernisasi dan harmonisasi hukum kepailitan negara-negara ASEAN, khususnya Indonesia.

Cross-Border Insolvency Law in BRIC

2019 ◽  
pp. 13-34
Author(s):  
Amit Kumar Kashyap ◽  
Anchit Bhandari ◽  
Aakanksha Tiwari
Keyword(s):  
Emerging Economies ◽  
Insolvency Law ◽  
Stable Law ◽  
International Standard ◽  
Cross Border ◽  
The World ◽  
The Cross ◽  
Model Law

The effective cross-border insolvency regimes are absent in many emerging economies around the world, and the BRIC nations are not the exception to this fact. Nevertheless, law on cross-border insolvency, which establishes the international standard in this area, is not addressed by domestic laws of these nations. This has led to a glaring gap in international insolvency regime. Where there is the absence of any uniform and stable law, however, the UNCITRAL model law on cross-border insolvency establishes the international standard that could be followed by any country. The chapter addressed the insolvency law regime in BRIC nations and has made an attempt to analyze the cross-border insolvency regulations in said countries in light of UNICITRAL model law on cross-border insolvency.

An Introduction to Corporate Insolvency Law and Reforms in Australia

2019 ◽  
pp. 107-131
Author(s):  
Amit Kumar Kashyap ◽  
Urvashi Jaswani ◽  
Anchit Bhandari ◽  
Yashowardhan S. N. V. Dixit
Keyword(s):  
Australian Government ◽  
Insolvency Law ◽  
Cross Border ◽  
Basic Framework ◽  
Corporate Insolvency ◽  
Model Law ◽  
Insolvency Proceedings ◽  
Legal Infrastructure

The Corporations Act of 2001 regulated the probable insolvency proceedings of all companies incorporated in Australia and companies incorporated or possessing separate legal. For personal insolvency, a specific legislation called Bankruptcy Act is there, but the basic framework of corporate insolvency law has been there since the inception of Corporations Act 2001 enactment, which includes all the aspects of company formation, management, governance, and dissolution. The authors have highlighted recent reforms; however, the main concentration of this chapter is on the legal infrastructure of corporate insolvency law at present as the reforms are not yet in force. The chapter also puts forth the problems faced by corporate debtor and creditors in the proceedings of insolvency resolution and has also expressed the scenario of cross-border insolvency in Australia in light of UNICTRAL Model law of cross-border insolvency which has been adopted by the Australian government in 2008.

Introduction

2016 ◽  
Author(s):  
Reinhard Bork ◽  
Renato Mangano
Keyword(s):  
European Union ◽  
The Other ◽  
Soft Law ◽  
Judicial Activism ◽  
The European Union ◽  
Insolvency Law ◽  
Cross Border ◽  
Model Law ◽  
Concise Description

This chapter is an introduction to the issues involved in cross-border insolvency cases and their regulation as covered by the EIR, which recast the OR. It also provides a view-from-the-cathedral of EU Regulation 2015/848; a concise description of its history, aims, and principles; as well as a list of the other relevant sources of law, including those of soft law such as the UNCITRAL Model Law and the European Communication and Cooperation Guidelines for Cross-border Insolvency (the so-called ‘CoCo Guidelines’). Finally, the role of the Court of Justice of the European Union (CJEU) for the interpretation of European insolvency law and its judicial activism are analysed.

ASEAN ECONOMIC INTEGRATION COMPARED: WHAT DO THE NUMBERS TELL US?

2016 ◽  
Vol 62 (03) ◽  
pp. 619-641 ◽  
Author(s):  
LURONG CHEN ◽  
LUDO CUYVERS ◽  
PHILIPPE DE LOMBAERDE
Keyword(s):  
Comparative Literature ◽  
Economic Integration ◽  
Regional Cooperation ◽  
Meta Analysis ◽  
Type Model ◽  
Integration Process ◽  
Qualitative Approaches ◽  
The World ◽  
Asean Countries ◽  
The One

In the comparative literature on regional (economic) integration processes, the ASEAN experience is often contrasted with the European (EU) integration process. More than any other integration process in the world, the ASEAN case is singled out as a counter-model for the EU. The ASEAN model is thereby associated with features such as: low levels of institutionalization, pragmatism, bottom-up or de facto regionalization, regional production platforms, and so on. The positive features of this ‘model’ are often emphasized; however, in recent years there have also been calls for deepening the institutionalization of ASEAN, including from the ADB.The purpose of our paper is double: On the one hand, we present a long-term meta-analysis of available indicators in order to compare more accurately the ASEAN experience with other integration experiences worldwide, and complement (and test) the mostly qualitative approaches in the comparative literature. This should allow to better identify convergences and divergences between ASEAN and other integration processes. On the other hand, by comparing ASEAN with benchmark cases, we shed new light on the potential for further deepening the economic integration process in Southeast Asia. The latter comparison is complemented with gravity-type model estimations to assess the potential for further developing intra-ASEAN trade.It is shown that ASEAN’s export space is expanding faster than the world average and that there is still space for ASEAN countries to further develop the role of its intra-regional trade. ASEAN can further improve the region’s competitiveness by reducing the non-tariff barriers and technical barriers, trade facilitation, strengthening regional value chains, facilitating factor mobility and enhancing regional cooperation.

scholarly journals Markets Matter: The Potential of Intra-Regional Trade in ASEAN and Its Implications for Asian Regionalism

2017 ◽  
Vol 16 (2) ◽  
pp. 1-19 ◽  
Author(s):  
Lurong Chen ◽  
Philippe De Lombaerde ◽  
Ludo Cuyvers
Keyword(s):  
Economic Integration ◽  
Regional Integration ◽  
Quantitative Assessment ◽  
Regional Trade ◽  
The World ◽  
Asian Regionalism ◽  
Economic Partnership ◽  
Asean Countries ◽  
Regional Comprehensive Economic Partnership

This paper attempts to shed new light on further deepening the economic integration process in Southeast Asia using a quantitative assessment of the potential for further developing intra-regional trade. It is evident that ASEAN's export space is expanding faster than the world average and that there is still room for ASEAN countries to further develop the role of their intra-regional trade. To improve its export potential, ASEAN should liberalize trade not only intra-regionally but also globally. It could be in ASEAN's interest to accelerate the pace of regional integration under frameworks that involve the participation of non-ASEAN countries, especially an ASEAN Framework for Regional Comprehensive Economic Partnership.

scholarly journals A COMPARATIVE ANALYSIS OF THE UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY AND EU INSOLVENCY REGULATION 2017, AGAINST THE BACKGROUND OF VARIOUS SOURCES OF CROSSBORDER INSOLVENCY LAW

2017 ◽  
Author(s):  
Primrose E.R. Kurasha
Keyword(s):  
Common Law ◽  
The Other ◽  
Insolvency Law ◽  
Cross Border ◽  
Insolvency Regulation ◽  
Similarities And Differences ◽  
Model Law ◽  
Compare And Contrast ◽  
Insight Into ◽  
The Eu

In this investigation, I will compare and contrast the UNCITRAL model law on cross-border insolvency law (hereafter referred to as ‘UNCITRAL model law’) with the EU Insolvency Regulation against the backdrop of various sources or dispensations of cross-border insolvency law. In this comparison, I will highlight the similarities and differences between the two, as well as discuss the other sources in depth, as they largely inform my research. My main aim in including the other sources in this comparative study is to provide deeper insight into these two sources of international cross-border insolvency law, as provided for by academics and sages in the field of insolvency law. These other sources include legislation, common law, treaties and regional dispensations.

scholarly journals Challenge and Opportunity: the ALI/III Global Principles Project

2017 ◽  
Vol 11 (1) ◽  
pp. 1
Author(s):  
IF Fletcher
Keyword(s):  
International Law ◽  
South African ◽  
International Project ◽  
Current Debate ◽  
Private International Law ◽  
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.

scholarly journals European and American Perspectives on the Choice of Law Regarding Cross-Border Insolvencies of Multinational Corporations – Suggestions for South Africa

2017 ◽  
Vol 15 (5) ◽  
pp. 133
Author(s):  
Jeanette Weideman ◽  
Leonie Stander
Keyword(s):  
United States ◽  
South Africa ◽  
International Trade ◽  
United States Of America ◽  
Multinational Enterprises ◽  
The United States ◽  
Valuable Insight ◽  
Cross Border ◽  
The World ◽  
Model Law

An increase in economic globalisation and international trade has amounted to an increase in the number of multinational enterprises that have debt, own assets and conduct business in various jurisdictions around the world.  This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross-border insolvency (CBI). The legal response to this trend has, inter alia, produced two important international instruments that were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law) in 1997, which has been adopted by nineteen countries including the United States of America and South Africa. Secondly, the European Union (EU) adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000.  Both the EC Regulation and Chapter 15 adopt a “modified universalist” approach towards CBI matters. Europe and the United States of America are currently the world leaders in the area of CBI and the CBI legislation adopted and applied in these jurisdictions seems to be effective. As South Africa’s Cross-Border Insolvency Act is not yet effective, there is no local policy guidance available to insolvency practitioners with regard to the application of the Model Law. At the basis of this article is the view that an analysis of the European and American approaches to CBI matters will provide South African practitioners with valuable insight, knowledge and lessons that could be used to understand and apply the principles adopted and applied in terms of the EC Regulation and Chapter 15, specifically the COMI concept, the “establishment” concept in the case of integrated multinational enterprises and related aspects.  

scholarly journals The Belt and Road Initiative, China’s Cross-Border Insolvency Law, and the UNCITRAL Model Law on Cross-Border Insolvency

2020 ◽  
Vol 8 (1) ◽  
pp. 116-142
Author(s):  
Meng Seng Wee
Keyword(s):  
United Nations ◽  
Belt And Road Initiative ◽  
Insolvency Law ◽  
Cross Border ◽  
Self Interest ◽  
Belt And Road ◽  
Model Law ◽  
Insolvency Proceedings ◽  
Domestic Law ◽  
The Belt And Road

Abstract By examining the special features of cross-border insolvency affecting the Belt and Road Initiative (BRI), this article explains that it is crucial for China to ensure that its cross-border insolvency law is fit for the purposes of the BRI. The current law is unsatisfactory, as may be seen in Hanjin Shipping’s decision not to seek recognition of its Korean restructuring proceeding in China. China wants to cooperate more in cross-border insolvency, but it is concerned that recognizing foreign insolvency proceedings will prejudice China’s interests. This article explains that the logic and limits of the United Nations Commission on International Trade Law’s Model Law on Cross-Border Insolvency is enlightened self-interest, which leads to recognition being very limited and distinguished from relief and relief being based on domestic law. Thus, it argues that the adoption of the Model Law will not prejudice China’s interests.

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