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Research on Transnational Bankruptcy from the Perspective of Private International Law

Author: JiaShen
Tutor: ChenWeiZuo
School: Tsinghua University
Course: Legal
Keywords: transnational bankruptcy jurisdiction law application cross-border effect acknowledgement and assistance of foreign bankruptcy proceedings
CLC: D997
Type: Master's thesis
Year: 2005
Downloads: 412
Quote: 4
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Abstract


The frequency and the scale of transnational bankruptcy accompanied by theeconomics globalization in the 21st century are increasing gradually. However,Legislation in China has been ignoring relative issues long since, which results thatstake-holders may face self-contradictory law convention and thus can not figure outhow to behave in law practice.At the beginning of this essay, the author clarifies the concept and basiccomponents of transnational bankruptcy. The main body of this essay aims to deeplystudy the following private international law issues including the jurisdiction, the lawapplication, the cross-border effects of bankruptcy proceedings, and the assistance inthe administration of foreign bankruptcy proceedings. In analyzing the logic linkageof those issues, the author uses relative law conventions and regulations of the maineconomic entities in the world for reference, including USA, Britain, France,Germany, and Japan. What’s more, the author briefly presents the latest update intransnational bankruptcy law making, and emphasizes the contribution of somesignificant principles and main articles embodied in the Model Law on Cross-BorderInsolvency issued by Committee of International Trade Law, UN, and CouncilRegulation (EU) No 1346/2000 on Insolvency Proceedings issued by EURO.Through deeply comparative law study and empirical study of real cases, theauthor concludes with some specific policy suggestions in law making oftransnational bankruptcy in China:(1) In the jurisdiction establishment, to protect the local creditors’ interests, Chinashould abolish the former ambiguous regulation, avoid too much “selfcontractiveness”, and take into consideration of necessary points of contact includingdomicile, main establishment and property location;(2) When choosing applicable laws, different laws should be adopted in dealingwith different categories of claims. Preferential debts should refer to laws of the homecountry where the relative rights occurred. But local laws should not be applied inadministration of the bankruptcy property to meet all the claims, for example,exemption right and recall right should refer to laws of the property location;(3) In the core issue of cross-border effect of bankruptcy proceedings, Chinashould adjust its regulations in line with UNCITRAL Model Law and EU Regulation,and allows the concurrence of main proceedings and secondary proceedings, theformer with universal effect and the latter with territorial effect. Secondaryproceedings should accord with and assist the main proceedings. The proceedingsinitiated by courts at domicile of debtors should be distinguished as the mainproceedings;(4) At last, the author suggests that the way that Chinese courts acknowledge andassist foreign bankruptcy proceedings should be differentiated from dealing with othersentences judged by foreign courts, and that according regulations in ChineseEnterprises Bankruptcy Law (Draft) should be complemented and enhanced. Thefollowing articles are needed to correct the inadequacy of previous regulations: A.specific remedies after local acknowledgement of foreign bankruptcy proceedings;B.specific articles on the protection and the suing procedure of local creditors with goodintentions;C. specific articles on the assistance to foreign courts and foreignbankruptcy administrators.

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CLC: > Political, legal > Legal > International law > Private international law
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