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China’s Belt and Road Initiative (BRI) is having a transformative effect on infrastructure development and international trade. This strategic development reflects China’s rapid emergence as a dominant player in the new international economic order and its competition with other major powers. It also reflects China’s championing of globalization. The BRI program will inevitably affect the emerging body of international commercial law operating in the over 125 countries and 29 international organizations that have signed up to be part of the BRI. Although there are many legal issues that have been raised by these developments, this article examines the emerging shape of cross-border insolvency law on the maritime and overland ‘Silk Roads’. Solvency problems are already emerging as serious concerns arising out of debts incurred through China’s infrastructure investments under this initiative. To-date, only 24 BRI countries have to varying degrees implemented the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency, creating a tension between territorial and more universalist approaches. In the short term, these insolvency issues are likely to be dealt with in a number of ways, such as by resorting to ‘soft law’ or by using administrative or political mechanisms. Given China’s commitment to the rule of law (with Chinese characteristics), it is inevitable that efforts will be made to give some normative shape to this new global space. This article seeks to explore this emerging frontier for cross-border insolvency law Refereed/Peer-reviewed

In the recent international history of insolvency law reform, the reform of corporate rescue and restructuring has been an ongoing project. In China, the enactment of the Enterprise Bankruptcy Law 2006 saw the introduction of a bankruptcy reorganisation procedure that incorporates the debtor-in-possession model found in Chapter 11 of the US Bankruptcy Code. However, the Chinese corporate rescue procedure has been significantly underused due in part to various drawbacks associated with this court-based and highly politicalised process. This paper explores the possibility of reforming China's current corporate rescue regime by drawing upon the Australian voluntary administration procedure. Found in Part 5.3A of the Corporations Act 2001 (Cth), this procedure was designed to provide a relatively swift, inexpensive and flexible corporate rescue mechanism for companies in financial distress. It comprises a noncourt based mechanism under the control of one or more professionally qualified private administrators. It is interesting to note that the UK also moved away from exclusive reliance upon court-based administration procedures following the passage of the Enterprise Act 2002. This moved the UK closer to the Australian practitioner-dominated approach to corporate rescue. This paper argues that the addition of a voluntary administration-style procedure to China's current corporate rescue regime may be needed as China develops its market economy based on the rule of law. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd

Many countries have benefited greatly from an influx of investment from China; much of this investment has come from Chinese State-owned enterprises (SOEs). Functioning as China’s national champions, Chinese SOEs have been the vehicles for the Chinese government to obtain resources from the international market, to participate in international market competition, and to expand Chinese national soft power. They also allow Chinese SOEs to gain controlling interests in foreign companies; this opens doors for other Chinese enterprises to sell goods and services abroad; this is a pattern that is well established from prior eras of foreign investment in countries such as Australia. However, these SOEs are also facing challenges overseas, especially the SOEs investing in the natural resources sector overseas. In order to meet the challenges of modern corporate governance, Chinese SOEs have sought to enhance their corporate governance practices whilst the Chinese government has also sought to reform its inefficient SOEs. In response to the challenges facing modern globally-active companies, China has adopted corporate social responsibility (CSR) ideas to better regulate its enterprises. This has often been supported by legislative mechanisms. With increasing outward-bound investment by Chinese SOEs, many SOEs have also developed their own CSR codes. This chapter explores some CSR norms developed by Chinese government agencies and China’s SOEs and examines how Chinese SOEs have implemented CSR norms to protect non-economic interests in natural resources rich countries, such as Australia.

China's phenomenal economic growth in the past 30 years has witnessed the rise of its global natural resources companies. At the same time, the emerging of a middle class in China and their desire to improve living standards including better dwelling conditions, better health and nutrition, has driven strong demand in mineral resources, energy and quality food. The so called 'socialist market economy' in China has seen this growing demand being met partially by companies with 'national significance'. In the resources sector, these companies are represented by companies listed in stock exchanges in China as well as globally such as in New York and London; at the same time, most of these companies are also controlled by the Chinese government. China's resources companies have expanded overseas in search of new acquisition targets whilst seeking to extend their global reach with a focus on resource rich countries. The expansion of these companies internationally, and the unique ownership structure of these companies, has posed challenges for regulators, trading partners of these companies, investors and other interested parties seeking to understand how these companies are governed and the implications of government ownership for resource security globally. Resource Security and Governance: The Globalisation of China's Natural Resources Companies contains case studies of the global expansion efforts of Chinese global natural resources companies; it reviews the governance structures of these companies and analyses how these have affected the inter-relationship between these companies and their trading partners, governments, regulators in targeted countries and investors globally. In addition, this book examines how the unique structure of these companies may affect resource security globally and touches on other related matters such as climate change, and air and water security in China.

Australia has always relied heavily upon foreign sources of investment and financing and has in the past tended to draw mainly upon British, American and Japanese investment. In recent decades, Chinese state-owned enterprises (SOEs) have played an increasingly important role in the Australian economy with a rising level of investment taking place. Chinese SOEs have been more heavily involved in investments into larger Australian investment projects, such as in mining and infrastructure. Australia has seen an increase in the number Chinese state-controlled companies acquiring substantial domestic assets; this may continue following the ratification of the China-Australia Free Trade Agreement in 2015. Although Chinese SOEs operating in foreign countries such as Australia are required to comply with local corporate governance laws and principles, they also retain their unique Chinese corporate governance values and culture which they have inherited through their parent companies and from China itself. In Australia, there has been an ongoing debate over Chinese investment, with the business community being particularly supportive of such investment. Driven largely by the business community, this debate has been relatively narrow and has not explored the likely impact of Chinese SOEs and their subsidiaries upon the shape of corporate governance in countries in which they invest. This article seeks to examine the legal contours of Chinese-controlled investment in Australia with a view to acquiring a more informed understanding of the impact of Chinese SOEs upon the Australian legal landscape.

In the recent international history of insolvency law reform, the reform of corporate rescue and restructuring has been an on-going project. In China, the enactment of the 2006 Enterprise Bankruptcy Law saw the introduction of a bankruptcy reorganization procedure that incorporates the debtor-in-possession model found in Chapter 11 of the US Bankruptcy Code. However, the Chinese corporate rescue procedure has been significantly underused due in part to various drawbacks associated with this court-based and highly politicized process. This paper explores the possibility of reforming China’s current corporate rescue regime by drawing upon the Australian voluntary administration (VA) procedure. Found in Part 5.3A of the Corporations Act 2001(CTH), this latter procedure was designed to provide a relatively swift, inexpensive and flexible corporate rescue mechanism for companies in financial distress. It comprises a non-court based mechanism under the control of one or more professionally qualified private administrators. It is interesting to note that the UK also moved away from exclusive reliance upon court-based administration procedures following the passage of the Enterprise Act 2002. This moved the UK closer to the Australian practitioner-dominated approach to corporate rescue. This paper argues that the addition of VA-style procedure to China’s current corporate rescue regime may be needed as China develops its market economy based on the rule of law.

China’s ‘Go Global’ strategy has encouraged Chinese companies to seek to enhance China’s resource security through acquisitions in foreign markets. Under the influence of this policy, Chinese companies have increased greatly outbound investment in recent years, and one consequence of this increased activity has been the generation of a range of commercial disputes. The choice of different methods of dispute settlement is in part influenced by the national legal cultures that have shaped the mindsets of parties to these commercial disputes. Recent Chinese investment abroad has grown significantly and increasing economic engagement between China and other countries will inevitably involve some degree of conflict as different legal cultures interact. In understanding points of tension in the Sino–Australian investment relationship questions are raised concerning legal pluralism and the impact of legal culture on Chinese-controlled companies operating in Australia. This article discusses a number of recent commercial disputes involving Chinese companies in Australia and the slow movement that these cases reveal towards a more globalized commercial law. Refereed/Peer-reviewed

In 2006, China enacted its first rescue-orientedEnterprise Bankruptcy Lawwith the aim of establishing its corporate rescue culture. But the corporate reorganization procedure that is at the heart of the new bankruptcy law has not been used frequently. It is appropriate to ask why the use of China’s new corporate rescue law has been so low. Meanwhile, in the existing corporate reorganizations under the 2006Law, most debtors were excluded from the reorganization process, so that the Chinese new debtor-in-possession model, which seems to be a desirable control format, was largely shelved. Why so? This article explores these two issues through the use of empirical data collected from Zhejiang, a province with a significantly larger number of reorganizations than most other Chinese provinces.

The enactment of China's Enterprise Bankruptcy Law in 2006 after debates spanning two decades was a milestone in the development of China's market-based economy. Bankruptcy laws have served as a key mechanism for market economies to adhere to their stated goals. One way of softening the harsh effects of insolvency is to develop a system of corporate reorganisation or rescue; China has also sought to move in this direction through its bankruptcy law reforms. However, the implementation of these laws has revived many of the older debates that undermined the law reform process. Paradoxically, although the Chinese economy has slowed considerably with the continued global financial crisis, there has been a very limited use of company reorganisation procedures and insolvency administrators in China. This demonstrates the limits to which external legal models will be effective in China and the complexity of the problems that remain to be resolved. Refereed/Peer-reviewed

In recent years, China’s ‘Go Global’ policy has encouraged Chinese companies to go abroad to invest; inevitably this increased investment activity has generated a range of tensions and commercial disputes. The legal cultures that have shaped the mind-sets of parties to these commercial disputes will affect the choice of different dispute resolution methods. Recent Chinese investment in Australia has also grown significantly in areas such as mining, agriculture and real estate; as a result of cultural differences, the economic engagement between Australia and China will inevitably involve some degree of negotiation, disagreement and conflict. This leads us to examine the impact that legal culture has on dispute resolution practices found in Chinese companies operating in Australia. This exploratory analysis draws upon theories of globalization and legal culture and discusses Chinese legal culture and its impact on commercial disputes involving Chinese companies operating in Australia.

China has enacted a number of company law statutes since the early 1990s. These demonstrate a commitment to the adoption of the corporate form as a vehicle for business activity. In the 1993 and 2005 Company Laws, and in numerous amendments to these Laws, Chinese legislators have shown that they have been well attuned to modern corporate law ideas and concepts. However, these company laws nevertheless reflect some important Chinese characteristics, such as the dominant role of the Communist Party and the impact of the State within Chinese companies. Chinese company law has clearly evolved in the shadow of a strong authoritarian state. This has influenced the ways in which these laws have been implemented. This paper explores key issues regarding the implementation of Company Law in China since 1993 and suggests that the language of the law cannot be understood without an appreciation of various institutional constraints upon the effect of company law upon Chinese companies.

Corporate governance reform is a major challenge facing Chinese firms trying to establish themselves in global markets. When they enter foreign markets, Chinese enterprises are likely to bring their pre-existing corporate governance practices with them. This paper examines how the corporate governance practices of foreign listed corporations operating in China have been received and how major Chinese companies operating outside China have responded to corporate governance requirements of foreign countries when listing abroad. The pervasive role of the state within individual Chinese companies is fundamental to understanding China’s corporate governance practices both at home and abroad. Because the state in China is somewhat fragmented, (its various agents operating at the national, provincial and local levels), large company shares may be held by different state agencies and may be used in different ways. This can result in conflicting obligations to the State. Although China may have copied Western corporate laws, stock market rules and corporate governance codes, the local meaning of these transplants is inevitably different due to the dominance of the state in large listed companies both as a shareholder and as the regulator. The “Go Global” campaign of senior Chinese officials might have been expected to consolidate the transposition of corporate governance practice and hastened some convergence between Chinese an Anglo American corporate governance practice. However, this does not seem to have happened as expected. So, the listing of Chinese companies on foreign stock exchanges does not seem to have resulted in these companies absorbing more refined principles of Anglo-American corporate law and governance.

This chapter considers the transaction avoidance laws contained in the Enterprise Bankruptcy Law 2006, 'EBL 2006'. It presents the transaction avoidance laws that were applicable under previous Chinese law before concentrating on the provisions of the EBL 2006. It then examines each type of voidable transaction in turn, with some brief comparisons to provisions to be found in insolvency systems in other countries where appropriate. The transaction avoidance laws, if properly enforceable, may enable the administrator to restore the estate to a value approaching that which it would have had if the transaction had not taken place. Mechanisms to support the fair distribution of the assets of insolvent companies were an area in which the Chinese law was hitherto largely ineffective. The provision of transaction avoidance laws is one thing; their effective enforcement is another and this is likely to be a key test of the effectiveness of the new system.

The ownership and control of government owned companies presents a major challenge for the integrity of established corproate law ideas regarding accountability of directors and the independence of government owned companies. Drawing upon experience from China and Australia, this article discusses some of the key corporate governance tensions that have emerged from the corporatisation of state owned assets. The attempt to uncritically apply private sector ideas to the corporatisation of state owned and controlled companies is fraught with difficulties that are discussed in this article. The article also examines attempts to place state owned companies on a sounder conceptual footing through changes in their culture brought about by adopting and embedding guidelines and standards, such as the recent OECD Guidelines on the Corporate Governance of State-owned Enterprises.

China has experienced dramatic developments in the growth of a rule-based approach to its securities market and the operation of corporate law since the early 1990s. These efforts sought to keep pace with the speed at which the market economy has grown in China over this time. However, the development of a sophisticated system of corporate law and corporate governance has tended to lag well behind rapid market developments, even in regard to the most advanced sector of China’s major stock exchange listed companies. This paper seeks to assess the nature of current patterns of law and regulation of this sector by reference to data derived from China’s top 100 listed companies. This paper was made possible by funding from the Australian Research Council of a project funded study led by Roman Tomasic, Neil Andrews and Jian Fu. This paper explores this theme by reference to findings from face to face interviews undertaken by the authors in China.

Contents: List of tables list of abbreviations Diversity and convergence in insolvancy laws in East Asia, Roman Tomasic Insolvency law in Japan, Stacey Steele Insolvency law in Korea, Soogeun Oh The long march towards China's new bankruptcy law, Roman Tomasic and Margaret Wang Insolvency law in Taiwan: the interplay between official and unofficial law, Angus Francis and Neil Andrews Insolvency law in Hong Kong, ELG Tyler Insolvency law in Vietnam, John Gillespie Insolvency law in Laos, Terry Reid Thai insolvency law: one step towards the development of the legal infrastructure for a revitalized economy, Eugene Clark and Sutee Supanit Insolvency law in Malaysia, Bahrin (Kam) Kamarul Insolvency law and institutions in Indonesia, David K. Linnan Insolvency law in Singapore, Victor Yeo and Pauline Gan The corporate insolvency system of the Phillipines: experience and reforms, Cesar L. Villanueva Insolvency law in New Zealand, Paul Heath Insolvency law in Australia, Rosalind Mason Culture, insolvency and legal orientalism in Asia: reaching for Goering's revolver, Tim Lindsey Cross-border insolvency in EastAsia: formal and informal mechanisms and UNCITRAL's model law, Angus Francis Index.