Insolvency in Private International Law

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ISBN: 9780199262502 | 0199262500
Cover: Hardcover
Copyright: 11/3/2005

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This book deals with the problems generated by those cases of insolvency (either of an individual or of a company) involving more than one system of law, that bring into operation the principles and methods of private international law. The author provides guidance on the ways in which workable solutions to practical problems can be achieved using national and international remedies now available, including assistance available from foreign courts. Both English and international law is covered in detail, including the EC Regulation on Insolvency Proceedings, in force throughout the UK since May 2002, and the UNCITRAL Model Law on Cross-Border Insolvency, which is due for enactment in the UK.

Table of Latin Terms and Expressions

xxiii

Table of Cases

xxv

Table of Statutes

xli

Table of Treaties and Conventions

Table to the EC Regulation on Insolvency Proceedings

liv

Table to the UNCITRAL Model Law

lvi

PART I INTERNATIONAL INSOLVENCY: NATIONAL APPROACHES

Chapter 1 THEORY AND PRINCIPLE IN CROSS-BORDER INSOLVENCY

(22)

1.1 Introduction: Insolvency and its International Dimension

1.2 Dominant Principles of Domestic and International Insolvency Law

1.3 Historic Antecedents: The Internationalist Tradition in English Law

Chapter 2 INSOLVENCY OF INDIVIDUALS

(112)

Preliminary

2.1 Jurisdiction

2.1.1 Prescribed Rules of Jurisdiction under EC Regulation 1346/2000

2.1.2 'A Debtor'—Meaning and Context

2.1.3 Other Preliminary Conditions for Opening Bankruptcy Proceedings

2.1.4 Jurisdictional Abstention: Forum Non Conveniens

2.1.5 Selected Comparisons

2.2 International Effects of an English Adjudication

2.2.1 Generally

2.2.2 Selected Comparisons

2.2.3 Non-acceptance of Trustee's Claim

2.3 Choice of Law

2.3.1 Generally

2.3.2 Selected Comparisons

2.4 Creditors and Claims in an English Bankruptcy

2.5 Discharge of Obligations under an English Bankruptcy

2.5.1 Voluntary Arrangements

2.5.2 Selected Comparisons

2.6 English Law's Recognition of Foreign Bankruptcies and their Effects

2.6.1 Generally

2.6.2 Selected Comparisons

2.7 The Effects of a Discharge Obtained through a Foreign Bankruptcy

2.7.1 Selected Comparisons

2.8 Concurrent Bankruptcies

Chapter 3 INSOLVENCY OF COMPANIES

137

(88)

Preliminary

3.1 Corporations: Basic Concepts and Special Principles

3.1.1 Corporate Domicile, Residence, and Nationality

3.1.2 Selected Comparisons

3.2 Jurisdiction

3.2.1 Winding up of English-formed Companies doing Business Abroad

3.2.2 Winding up of Foreign Companies in England

3.2.3 Special Problems Encountered in the Context of Winding up Companies which have been Dissolved Abroad

3.2.4 The Limits of the English Courts' Jurisdiction

3.2.5 Selected Comparisons

3.3 International Effects of an English Winding Up

3.3.1 The General Position on International Effects

3.3.2 The Effects of Winding up on the Company's Property

3.4 Choice of Law in an English Winding Up

3.5 Creditors and Claims in an English Winding Up

3.6 Discharge and Dissolution under an English Winding Up

3.7 English Law's Recognition of Foreign Liquidations and their Effects

3.7.1 Generally

3.7.2 Selected Comparisons

3.8 The Effects of Dissolutions and Discharges of Obligations resulting from Foreign Liquidations

3.9 Concurrent Liquidations

3.10 Recognition of Foreign Receiverships and Non-Liquidation Procedures

Chapter 4 JUDICIAL ASSISTANCE IN CROSS-BORDER INSOLVENCIES: CURRENT PROVISIONS UNDER NATIONAL LAW

225

(48)

Preliminary

4.1 International Cooperation by United Kingdom Courts under Section 426 of the Insolvency Act 1986

4.1.1 Generally

4.1.2 The Nature and Extent of the Assistance Available under Section 426(4)

4.2 Ancillary Proceedings Pursuant to Section 304 of the United States Bankruptcy Code

4.2.1 Jurisdictional Immunity of the Foreign Representative

4.2.2 Jurisdictional Abstention

4.2.3 Concluding Observations

4.3 International Judicial Assistance under Australian Insolvency Law

4.4 International Judicial Assistance in Canada under Part XIII of the Bankruptcy and Insolvency Act

PART II INTERNATIONAL REGULATION OF INTERNATIONAL INSOLVENCY: REGIONAL INITIATIVES

Chapter 5 LATIN AMERICA, SCANDINAVIA, AND THE NAFTA COUNTRIES

273

(42)

Preliminary

5.1 The Montevideo Treaties of 1889 and 1940

5.1.1 Scope and Effects: The 1889 Treaty

5.1.2 Scope and Effects: The 1940 Treaties

5.1.3 General Observations

5.2 The Bustamante Code of the Havana Conference (1928)

5.2.1 Scope and Effects

5.2.2 General Observations

5.3 The Nordic Bankruptcy Convention of 7 November 1933

5.3.1 Scope and Effects

5.3.2 General Observations

5.3.3 EC Regulation 1346/2000 on Insolvency Proceedings

5.4 Co-operation within the NAFTA Countries: the Transnational Insolvency Project of the American Law Institute

5.4.1 General Survey of the ALI Principles

Chapter 6 THE COUNCIL OF EUROPE CONVENTION OF ISTANBUL, 5 JUNE 1990

315

(24)

Preliminary

6.1 Aims and Scope of the Istanbul Convention

6.2 Rules of International Jurisdiction: the Opening of a Bankruptcy

6.3 Extraterritorial exercise of the Liquidator's Powers

6.4 Secondary Bankruptcies

6.5 Creditors' Rights to Receive Information and to Lodge Claims

6.6 Entry into Force of the Convention: Accession by Non-Members of the Council of Europe

Chapter 7 THE EC REGULATION ON INSOLVENCY PROCEEDINGS

339

(104)

Preliminary

7.1 Outline history of the EC Insolvency Project: Evolution of the Text

7.1.1 The Phase I Draft Convention (1960-1980): Principal Features

7.1.2 Phase II: The Convention on Insolvency Proceedings (1995)

7.1.3 Phase III: Regulation 1346/2000

7.2 Commentary upon the EC Regulation

7.2.1 Scope and Application

7.2.2 International Jurisdiction

7.2.3 Centre of Main Interests (COMI)

7.2.4 An 'Establishment' Possessed by the Debtor

7.2.5 The Developing Case Law on Jurisdictional Issues

7.2.6 Choice of Law Rules

7.2.7 Recognition of Insolvency Proceedings

7.2.8 International Effects

7.2.9 Secondary Insolvency Proceedings

7.2.10 Creditors' Right to Lodge Claims and to Receive Information

7.2.11 Interpretation by the Court of Justice

PART III INTERNATIONAL REGULATION OF INTERNATIONAL INSOLVENCY: GLOBAL INITIATIVES

Chapter 8 UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY

443

(52)

Preliminary

8.1 History and Evolution of the UNCITRAL Model Law

8.2 Summary and Substance of the UNCITRAL Model Law

8.2.1 Recognition of Foreign Proceedings

8.2.2 Direct Rights of Access to Courts and Legal Processes in the Enacting State

8.2.3 Rights of Courts and Office Holders to Request Recognition, Information, and Assistance in a Foreign State

8.2.4 Cooperation between Courts and Office Holders from Different Jurisdictions

8.2.5 Coordination of Concurrent Proceedings

8.3 The Next Phase: State Enactment of the Model Law

8.4 Enactment of the Model Law in the United Kingdom

Chapter 9 BEYOND THE MODEL LAW: THE QUEST FOR INTERNATIONAL STANDARDS AND PRINCIPLES

495

(14)

9.1 International Insolvency: The Continuing Challenges

9.2 The Quest for International Standards and Principles

9.3 The Challenge of the Future

APPENDICES

509

(196)

Appendix I SELECTED NATIONAL LEGISLATION

509

(28)

(A) United Kingdom: Insolvency Act 1986, Section

426

(87)

(B) USA: Bankruptcy Code (11 U.S.C.), §§ 101(23), (24), 304-306; §§ 1501-1532, with associated amendments (2005)

513

(16)

529

(2)

(D) Canada: Bankruptcy and Insolvency Act, Part XIII (sections 267-275) (English and French texts)

531

(6)

Appendix II EUROPEAN UNION

Council Regulation (EC) No. 1346/2000 of 29 May 2000 on Insolvency Proceedings

537

(30)

Appendix III COUNCIL OF EUROPE: Convention on Certain International Aspects of Bankruptcy (English and French texts)

567

(23)

Appendix IV United Nations Commission on International Trade Law (UNCITRAL): Model Law on Cross-Border Insolvency, May 1997

590

(11)

Appendix V LATIN AMERICAN TREATIES:

(A) Montevideo Treaty on International Commercial Law, 12 March, 1889, Title X (Articles 35-48)

601

(2)

(B) Montevideo Treaty on International Commercial Terrestrial Law, 19 March, 1940, Title VIII (Articles 40-53)

603

(2)

605

(1)

(D) Havana Convention on Private International Law, 20 February, 1928, Title IX (Articles 414-422)

606

(3)

Appendix VI NORDIC BANKRUPTCY CONVENTION

609

(5)

Appendix VII VIRGOS-SCHMIT REPORT ON THE 1995 CONVENTION ON INSOLVENCY PROCEEDINGS

614

(89)

Appendix VIII SELECT BIBLIOGRAPHY

703

(2)

Index

705

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Insolvency in Private International Law

Summary

Author Biography

Table of Contents

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Insolvency in Private International Law

Summary

Author Biography

Table of Contents

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