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This article examines the procedural issues in a bankruptcy lawsuit with a foreign element from a Turkish private international law perspective. The article begins with a brief overview of the bankruptcy procedure under Turkish domestic law. It then explores the jurisdiction of Turkish courts in an international bankruptcy lawsuit in detail. The effects of a foreign choice of court agreement and parallel proceedings are also addressed in discussing the international jurisdiction of Turkish courts. The article also touches upon the debates on the possible legal grounds for the inclusion of assets located abroad to the bankruptcy estate established before Turkish courts considering the approaches of universalism and territorialism. Finally, problems related to the recognition of foreign bankruptcy decisions are examined. [ABSTRACT FROM AUTHOR]

This article examines the potential and challenges of the 'Cooperation Mechanism', a scheme introduced jointly by the Supreme People's Court in China and the Government of the Hong Kong Special Administrative Region on 14 May 2021, for enhancing mutual recognition and assistance in insolvency proceedings. This article contends that the Cooperation Mechanism does not in itself constitute a formal mechanism for mutual recognition. To assess the impact of the Cooperation Mechanism, this article traces and analyses court decisions on recognition and assistance made before the implementation of the Cooperation Mechanism, and places them in contrast to those pursuant to or influenced by the Cooperation Mechanism. Additionally, it highlights a similar practice between Europe's Brussels Convention of 1968 and two arrangements between Hong Kong and China prior to the Cooperation Mechanism, namely the 2006 Arrangement and the 2019 Arrangement, in carving out bankruptcy and insolvency proceedings, notwithstanding some technical differences. [ABSTRACT FROM AUTHOR]

The cramdown rule (11 USC s 1,129(b)) originates from the U.S. 1978 Bankruptcy Code as an innovative mechanism. The cramdown provision is rarely used in judicial practice in the United States. However, it is a key rule to understand the parties' bargaining structure. The inactive cramdown provision yet has been widely transplanted into other jurisdictions, including China. Little literature exists to explore the economic rationale of cramdown provision mainly because of its inactiveness in practice. This research explores the economic function of the cramdown provision in an inefficient market, using the cases of United States and China. This research observes that the cramdown provisions can only effectively function with the essential conditions and elements, such as the Best Interests of the Creditors Test, good faith, feasibility, fairness and equitability as well as the absolute priority rule. Therefore, the partial transplantation of the cramdown provision might not be effective. [ABSTRACT FROM AUTHOR]

The European Restructuring Directive is Europe's answer to Chapter 11 of the US Bankruptcy Code. Under the Directive, debtors will have access to early warning tools that enable them to detect a deteriorating business and this should lead to more restructurings at an early stage. The debtor will benefit from a time‐limited 'breathing space' from enforcement action in order to facilitate negotiations on a restructuring plan. This article analyses in critical detail the stay or moratorium on actions against the debtor during the restructuring process. The stay is a fundamental part of the Directive. The paper highlights the importance of the stay and locates the stay in the context of the Directive and also in the light of the international parallels found in the US Bankruptcy Code and the UNCITRAL Legislative Guide on Insolvency Law. [ABSTRACT FROM AUTHOR]

Micro‐, small‐, and medium‐sized enterprises (MSMEs) represent the vast majority of businesses in most countries around the world. Despite the economic relevance of these firms, most insolvency jurisdictions do not provide adequate responses to MSMEs. Moreover, with a few exceptions, the academic literature on insolvency law has not traditionally focused on the treatment of MSMEs in insolvency. This article seeks to contribute to the debate by exploring the primary features and problems of MSMEs in insolvency as well as the weaknesses of the ordinary insolvency framework to deal with MSMEs. It also provides a general overview of the primary reforms and policy recommendations taking place around the world to deal with MSMEs in insolvency. The article concludes by suggesting several strategies to design an efficient insolvency framework for MSMEs. [ABSTRACT FROM AUTHOR]

Hong Kong has no statutory cross‐border insolvency regime. Hong Kong courts have to resort to common law principles in circumstances where they are requested to recognise foreign insolvency proceedings and grant assistance. The nature and scope of these principles have been the subject of extensive debate in common law jurisdictions. In Re CW Advanced Technologies Ltd [2018] HKCFI 1705, Harris J identified the uncertainties associated with the common law position in Hong Kong. These uncertainties include whether a Hong Kong court may recognise a Singapore moratorium granted to facilitate a scheme of arrangement and, if so, whether the court may grant recognition where Singapore (i.e., the foreign jurisdiction) is not the country of incorporation. Harris J also noted the 'urgent need to enact a statutory cross‐border insolvency regime'. This article examines the scope of the common law powers in Hong Kong and seeks to clarify the possibility for members within a corporate group located outside Singapore, where the holding company has its centre of main interests in Singapore or is otherwise eligible to use the Singapore scheme regime, to obtain recognition and assistance in Hong Kong. [ABSTRACT FROM AUTHOR]

Creditors often face significant information asymmetry when debtor companies seek to restructure their debts. In the United Kingdom, it is mandatory for debtor companies, seeking to invoke the courts' jurisdiction to restructure their debts via schemes of arrangement (schemes), to disclose material information in the explanatory statement to enable the creditors to make an informed decision as to how to exercise their votes in creditors' meetings. The English schemes have been transplanted into common law jurisdictions in Asia, including Hong Kong and Singapore. However, due to the differences in the shareholding structures and the kinds of debts that are sought to be restructured in the UK and Hong Kong/Singapore, this transplantation gives rise to the question as to whether information asymmetry is in fact adequately addressed in the scheme process. Drawing from the experiences of Hong Kong and Singapore, we argue that there are three principal concerns in the current disclosure regimes: how debtors disclose the analysis as to the returns pursuant to the best available alternative option if the schemes do not proceed; how debtors disclose advisors' fees; and the equality of provision of information in the scheme process. [ABSTRACT FROM AUTHOR]

This article considers relief from directors' duties to avoid trading whilst insolvent during the COVID‐19 pandemic in Australia and Germany. Comparative insolvency law literature traditionally compares Australia to jurisdictions such as the United Kingdom and New Zealand. However, Germany has a track record of using insolvency law to manage social and economic crises. The German approach suggests solutions to critical issues not dealt with in the Australian safe harbour legislation, such as the failure to suspend other statutory duties to provide clear guidance to directors on the balancing of various interests, and the treatment of potential voidable transactions and new monies (i.e., new funding or credit). The responses in both jurisdictions suggest a change in priorities away from creditor protection, a key raison d'être for these types of duties, during a crisis. Similar to the German approach of turning the obligation to file for formal insolvency proceedings off and on, the further safe harbour adopted in Australia as part of a new restructuring procedure for small businesses, which commenced on January 1, 2021, suggests that the use of safe harbours could become a permanent crisis‐management tool in Australia too, with potential consequences for the balance between debtor and creditor interests. [ABSTRACT FROM AUTHOR]

Singapore has recently adopted changes to the structure of its scheme of arrangement that result in the procedure being seen as a hybrid between traditional common law schemes and the US Chapter 11 procedure. The new scheme model adds to the range of procedures already available in Singaporean law that contemplate restructuring as a possible outcome and, together with changes to the cross-border framework in insolvency, offer the prospect that Singapore could become a regional, if not global, hub for restructuring activity. This article looks at the corporate rescue framework as it has developed to include the latest reforms. [ABSTRACT FROM AUTHOR]

This article analyses the discretion available to a New Zealand court to grant assistance in response to an application for inward assistance in relation to a cross-border insolvency (CBI) proceeding since the Insolvency (Crossborder) Act 2006 (NZ) (ICB Act) came into force in 2008. Specifically, the article considers the discretionary power given to the Courts under s 8 of the Act to provide aid and assistance. This section has been held to apply when an application in respect of an overseas foreign proceeding does not meet the requirements for the Model Law rules in Sch 1 of the Act. The Model Law rules are based on the United Nations Commission on International Trade's Model Law on Cross-Border Insolvency. Three High Court decisions to date have considered this discretion in s 8. The article identifies the factors that the courts have taken into account when deciding whether to provide aid and assistance under the provision. These are the policy objectives of the Act, the private international law principle of comity and the universalist approach to CBI at common law. The article then discusses these factors and whether international common law developments have altered the approach that New Zealand courts will take to future applications for aid and assistance under s 8. It also discusses the limits of s 8 in terms of the jurisdiction to remit New Zealand-located funds and assets and possible amendments to the ICB Act. [ABSTRACT FROM AUTHOR]

The article discusses the relation of the UNCITRAL Model Law on Cross-Border Insolvency to corporate insolvency law in Hong Kong, China. Topics include an insolvency case involving the firm Hanjin Shipping Co. Ltd., the recognition of foreign proceedings, and the notion of universalism in insolvency laws.

The article offers information on the United Nations' Model Law on Cross-Border Insolvency. Topics discussed include foreign bankruptcy proceedings; Model Law's implementation problems as problems of imperfect modularity; and court cases Rubin v. Eurofinance SA and In re Fairfield Sentry Ltd. addressing the same.

The article focuses on the Anglo-American bankruptcy tradition. Topics discussed include adoption and interpretation of United Nation's UNCITRAL Model Law on Cross-Border Insolvency; contractual relationship between debtor and creditors to determine if proceedings are collective; and European insolvency law.

The article focuses on cross-border insolvency and choice of a central court for the same. Topics discussed include analysis of the general rule for choosing the central court, and modified universalism; court's relationship to the debtor; and fostering cooperation among jurisdictions which focuses on judicial role in guiding professionals toward international communication and cooperation.

The article discusess what extent customary international law can be utilized in the field of cross-border insolvency. Topics discussed include obstacles that might be in the way of formalizing modified universalism; narrow perceptions of private international law and cross-border insolvency; and U.S. Bankruptcy Code.

The broad and specific objectives of international insolvency have led to the emergence of several theories, such as territorialism and various forms of universalism, on how to best achieve these goals. In 1997, the United Nations Commission on International Trade Law (UNCITRAL) proposed a Model Law, based largely on modified universalism, to promote judicial cooperation in -- and decrease the costs of -- cross-border insolvency cases. The European Union, Australia, and the United States have all adopted the Model Law, either in part or in full. But the enforcement of cross-border insolvency judgments in these jurisdictions continues to be erratic, as judges implement the decisions of foreign courts inconsistently. Consequently, in 2015, the Commission proposed an amendment to the Model Law -- the Recognition and Enforcement of Insolvency-Related Judgments -- which would enforce insolvency-related orders subject to seven narrowly enumerated exceptions, such as due process and fraud. Rather than rely on judicial gap filling, Congress should adopt the proposed amendment, which will provide clarity and predictability to cross-border insolvencies, reduce costs and maximize value to creditors. [ABSTRACT FROM AUTHOR]

Following years of expansive interpretation of the freedom of establishment for companies, in its recent Kornhaas decision the Court significantly limited the freedom's scope by introducing an exception for such rides of the host Member State that relate to the conduct of the company's business (as opposed to rules that affect the process of setting up the establishment itself). In substance, this distinction very much resembles an application of the well-known Keck doctrine that was originally developed in the context of free movement of goods. Kornhaas concerns the problem to what extent the host Member State s insolvency law can be applied to a company that was formally set up and registered in another (home) Member State but carries out all or most of its business in the host Member State. The case involved a number of legal problems, inter alia owing to the fact that the conflict-of-law clause contained in the European Insolvency Regidation points to the debtor's "centre of main interests" for the application of substantive insolvency law. In line with this rule, the Court derives from the Treaty potentially far-reaching exemptions from the scope of freedom of establishment. This article demonstrates that the decision is deeply flawed and that the Keck doctrine is inappropriate in the present context. [ABSTRACT FROM AUTHOR]

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In this article the author analyzes the principle of pure universality in international bankruptcy law. This is one of the most important theories in the field of cross-border insolvency, that came up as an answer to the dominance of principle of territoriality in national bankruptcy laws. In the first part of the article, the author determines the meaning and basic characteristics of the principle of pure universality. Afterwards, the most important advantages of this principle have been elaborated. They are supposed to be the justification for its introduction. Next part of the article points out to the most significant limitations of this principle, because potencial implementation must bear them in mind. In the last part of this article the author defines the basic conditions for the application of principle of pure universality. The author of this article argumented in favour of this principle, in spite of current domination of other theories.

This article discusses the international bankruptcy in American integration law addressing aspects of international law, Community law and private international law. Adopts as paradigm the recent provisions of European Community law on the matter, comparing the territorial principle, which traditionally governs the invitation to tender international bankruptcy, with the principle of bankruptcy universal normative, adopted in Europe, that provides the transboundary effects of the declaration of bankruptcy when the debtor possesses establishments or goods based in other countries in the block of integration. It is concluded by the needed to adopt a procedure that balances all interests in conflict and considers the important social role of the company in a globalised economy.

The article discusses international insolvency (bankruptcy) in relation to Indian jurisprudence and the nation's treatment of cross-border bankruptcy cases, and it mentions model laws and statutes such as the Companies Act of 1956 and the Provincial Insolvency Act of 1920 in India.

The article focuses on the local methods which diminished the efforts of Model Law on Cross Border Insolvency drafted by the United Nations Commission on International Trade Law (UNCITRAL) for the bankruptcy cases of multinational debtors and within the Chapter 15 of the U.S. Bankruptcy Code.

The article focuses on the recast of the European Council Regulation regarding the insolvency proceedings with the underlying relationship between two major principles of international insolvency law and the introduction of synthetic proceedings as a way to avoid opening of secondary proceedings.

The article focuses on meaning of economic activity and establishment in European Union (EU) Regulation 1346/2000 on cross-border insolvency proceedings and implication in Great Britain Supreme Court case Trustees of the Olympic Airlines SA Pension & Life Insurance Scheme v Olympic Airlines SA.

The author discusses a question about when cross-border insolvency recognition is considered to be manifestly contrary to public policy in places such as the U.S., and it mentions America's Bankruptcy Code, legal exceptions involving international arbitration and U.S. common law, and model laws.

The article focuses on the extra-territorial effect of the U.S. Bankruptcy Code and discusses its legislative history. It mentions the U.S. Supreme Court decisions in the cases Kiobel v. Royal Dutch Petroleum Co. and Morrison v. National Australia Bank Ltd. related to the presumption against extra-territoriality in the U.S. It also mentions the context-based granting of extra-territorial effect to the Bankruptcy Code in context of the Ninth Circuit's decision in In re Simon.

The article focuses on new mechanism for international bankruptcy courts to deal with cross-border disputes and mentions the consequences of cross-border insolvencies. It mentions the use of a cross-border trial in the context of the In re Nortel Networks, Inc., under the Companies' Creditors Arrangement Act. It also mentions that the debtors and courts may use a coordinated cross-border trial or evidentiary hearing to address challenging transnational disputes among international affiliates.

The article discusses the 2012 "Transnational Insolvency: Global Principles for Co-operation in International Insolvency Cases" report which was commissioned by The American Law Institute and The International Insolvency Institute, and it mentions the report's 23 proposed Global Rules regarding conflict-of-law matters in relation to Australia's policies on conflicts-of-laws. Australia's Cross-Border Insolvency Act 2008 is examined, along with Model Laws and Australian courts.

The article presents a study which explores the issues concerning the timing for determining the debtor's center of main interests (COMI). The American approach to international insolvencies before the enactment of Chapter 15 of the U.S. Bankruptcy Code is described. Interpretations of the appropriate time for performing the COMI inquiry are also provided.

The article offers information on the global principles for cooperation and guidelines for court-to-court communications in international insolvency cases. Among the global principles that were mentioned include case management, information sharing and cooperation between administrators and courts, and international jurisdiction. Guidelines also include electronic communication (e-communication) to court and insolvency administrator, joint hearing, and powers of the court.

The article discusses a proposed contractual solution to several sovereign debt restructuring (SDR)-related problems, focusing on an economic slowdown in Ireland, the nation's austerity program, and the International Monetary Fund's (IMF's) role in SDRs. Various statutory and contractual reform measures are mentioned, along with an international bankruptcy regime and procedural solutions to improve the negotiation process. Trigger terms and sovereign debt contracts are also examined.

The article focuses on issue related to adoption of European Union's (EU) regulations on insolvency proceedings and United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-border Insolvency (Model Law) by China. Topics discussed include China's Supreme People's Court's response upon a request for recognition of Norstar Automotive, issues related to China's involvement into International convention, and principle of comity reflected by the Model Law.

The article discusses how international arbitration law can assist in cases related to international insolvency law. Topics discussed include adoption of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross- Border Insolvency (Model Law) in 40 countries, difference between international trade law and international arbitration law, and scenarios where international insolvency and international arbitration cases can interact.

The article discusses an article focused on court-to-court communication in cross-border insolvencies, which has been reprinted from an article published in German in the journal "Neue Zeitschrift für Insolvenzrecht." Topics discussed include how insolvency systems of Canada and the U.S. differ from that of Germany, approaches taken by civil law and common law jurisdictions regarding court-to-court communications, and limited jurisdiction of locals courts in criminal and civil proceedings.

The article discusses the global principles from the perspective of a jurisdiction that has adopted insolvency laws of the United Nations Commission on International Trade Law (UNCITRAL) on cross-border insolvency. It discusses a report titled "Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases" published by two professors including Bob Wessels and Ian Fletcher in 2012. It also highlights international insolvency laws of Australia.

The article discusses the evolution of insolvency law in Russia and its main features such as conduct of insolvency proceedings. Topics discussed include modernization of Russian insolvency system, integration of Russian insolvency system in global processes such as international cooperation in bankruptcy, and effectiveness of the Russian insolvency system.

The article reports on decision held by the U.S. States Court of Appeals for Second Circuit that applied Chapter 15 case on the foreign representatives of Octaviar Administration Pty. Ltd. (Octaviar), which has filed a request for Australian liquidation reorganization. Topics discussed include business operations of Octaviar, how Octaviar's decision to separate its tourism and financial services business led to its demise, and Octaviar's claims against Drawbridge Special Opportunities Fund LP.

The article focuses on the United Nations Commission on International Trade Law (UNCITRAL) Model Law Enactment Guide. Topics include the model law on cross-border insolvency, the revised Guide's recommendations regarding the center of main interests (COMI), and the harmonization of international law.

Ukraine cooperates with a number of leading European international organizations, defining it as an active member of the international community. In addition, the regulated rate for further development of our country makes its own rules for the development and legal sector, including increasing the need for compliance of legal framework with the requirements of the volatile economy. Insolvency law as a guarantor of economic stability requires support from the legal theory on the way of modern global reform. Sources of «soft law» of international organizations, under the circumstances, have been of great practical importance for the national bankruptcy law as enable and adopt the necessary experience with bankruptcy rules in different countries, and provide the opportunity to analyze the insolvency Law of Ukraine with its position adequate in the circumstances. [ABSTRACT FROM AUTHOR]

The article focuses on developments in court to court communications in relation to international insolvency cases. Topics discussed include the Australia Conciliation and Arbitration Act 1904, the doctrines of forum non conveniens and lis alibi pendens, the efforts made by multilateral organizations such as United Nations Commission on International Trade Law in resolving international insolvency. It also mentions the Australian Cross-Border Insolvency Act 2008.

This article examines the recent UK Supreme Court case that struck a blow to bankruptcy trustees and plaintiffs seeking to recover illgotten and fraudulently transferred funds held abroad. The case effectively barred UK courts from recognizing foreign bankruptcy judgments, and will prove persuasive to similarly situated courts around the globe. In its ruling, the brand new court narrowly interpreted both British common law and the UK enactment of the "cooperative" Model Law on Cross- Border Insolvency to maximize its own authority relative to foreign judiciaries and domestic political institutions. The decision in Rubin v. Eurofinance SA was litigated over a small matter, but the decision guides strategic decisions in multi-billiondollar insolvency cases. The case was partly financed on appeal by litigants of the remnants of the infamous Madoff ponzi scheme. The goal was to test the boundaries of the highly influential British common law, as well as the Model Law, in furthering international cooperation that could streamline complex bankruptcy proceedings. In a blow to the Madoff trustee and victims, the decision effectively foreclosed the possibility of centralizing the proceedings. This article argues that the decision provides a highly effective precedent as well as an important signpost of "territorialist" policy at the forefront of cross-border insolvency jurisprudence. The UK Supreme Court's careful reasoning and its implicit political motives provide an excellent example of the practical limits to the high-minded goals of the international cross-border insolvency regime. [ABSTRACT FROM AUTHOR]

The article discusses the enforcement of foreign judgments as they relate to cross-border insolvency cases in Great Britain, particularly Cambridge Gas Transport Corp. v. Official Committee of Unsecured Creditors of Navigator Holdings Plc and Rubin v. Eurofinance SA. Topics mentioned include the history of the caselaw on this issue, the resistance of courts in some countries to accept a universalist view of jurisdiction, and the assistance a court may provide to a foreign office holder.

The article offers information on the judicial decision of the U.S. Court of Appeals for the Fifth Circuit in a cross-border bankruptcy case of In re Vitro, in which the Circuit court refused to honor a plan of re-organization that was approved under the Ley de Concursos Mercantiles (LCM) by a Mexican bankruptcy court. It mentions this decision helped in achievement of global cooperation in cross-border insolvencies by the international bankruptcy community.

The article offers information on the need and increasing use of court-to-court protocols for communications and co-operation in cross-border cases under the national insolvency legislation in the U.S. It informs that the guidelines for court-to-court communications in cross-border cases are developed and promoted through the work of the American Law Institute and the International Insolvency Institute.

The article discusses the Close-out netting provisions legal institutions that helps the counterpart dissolution and fulfill its contractual obligations, stating that the provisions act as the best risk management tool used in the capital market for maintaining the private international laws.