Cross‐border Insolvency and Legal Transnationalisation

Mason, Rosalind

doi:10.1002/iir.1199

Cited by 5 publications

(5 citation statements)

References 16 publications

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“…The international legal framework for cross-border insolvencies encompasses a variety of guidelines, treaties, and conventions aimed at facilitating cooperation among jurisdictions and harmonizing insolvency laws across borders (Mason, 2012). Developed by the United Nations Commission on International Trade Law (UNCITRAL), the Model Law provides a legal framework for the recognition and enforcement of foreign insolvency proceedings.…”

Section: Current International Legal Frameworkmentioning

confidence: 99%

“…Capacity Building and Training for Legal Professionals, capacity building and training for legal professionals are essential components of implementing policy guidelines for managing crossborder insolvencies in the digital economy (Mason, 2012). It ensures that judges, lawyers, insolvency practitioners, and other stakeholders have the necessary knowledge, skills, and resources to effectively navigate the complexities of digital insolvency cases.…”

Section: Implementation Strategiesmentioning

confidence: 99%

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Developing International Policy Guidelines for Managing Cross-Border Insolvencies in the Digital Economy

Etinosa Igbinenikaro,

Adefolake Olachi Adewusi

2024

Int. j. manag. entrep. res

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The rapid growth of the digital economy has transformed global commerce, introducing new complexities and challenges, particularly in the realm of cross-border insolvencies. As businesses increasingly operate across national boundaries and rely on digital assets and data, traditional bankruptcy laws struggle to effectively address the intricacies of digital insolvencies. This review outlines the need for developing international policy guidelines to manage cross-border insolvencies in the digital economy. Cross-border insolvencies in the digital economy present unique challenges, including jurisdictional conflicts, the treatment of digital assets and data, and coordination among diverse stakeholders. Existing international legal frameworks, while providing some guidance, are often inadequate in addressing these complexities. Thus, there is a pressing need for harmonized policy guidelines to facilitate efficient and fair resolution of digital insolvencies. The proposed policy guidelines aim to achieve several objectives. Firstly, they advocate for the harmonization of laws and regulations across jurisdictions to provide clarity and consistency in cross-border insolvency proceedings. Secondly, they call for the establishment of a framework for recognizing and enforcing foreign insolvency proceedings, ensuring equitable treatment of creditors and stakeholders. Additionally, the guidelines emphasize the protection and appropriate treatment of digital assets and data, reflecting their growing importance in the digital economy. Implementation strategies include capacity building for legal professionals, mechanisms for dispute resolution and coordination, and ongoing monitoring and evaluation of policy effectiveness. Case studies and best practices will be utilized to illustrate successful cross-border insolvency resolutions in the digital economy, offering valuable insights for policy development and replication. In conclusion, developing international policy guidelines for managing cross-border insolvencies in the digital economy is crucial for promoting economic stability, facilitating global commerce, and safeguarding the interests of creditors and stakeholders in an increasingly interconnected world. Keywords: Bankruptcy, Law, International Policy Guidelines, Cross-Border, Insolvencies, Digital Economy.

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Section: Current International Legal Frameworkmentioning

confidence: 99%

Section: Implementation Strategiesmentioning

confidence: 99%

Developing International Policy Guidelines for Managing Cross-Border Insolvencies in the Digital Economy

Etinosa Igbinenikaro,

Adefolake Olachi Adewusi

2024

Int. j. manag. entrep. res

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“…A critical infrastructure to support the integration of developing economies is that legal structures governing business bankruptcy must harmonize (Blodgett & Kane, 2003). The scope of a nation's bankruptcy laws is an essential element to creating an environment for firm growth (Holt, 2007;Lee et al, 2011;Mason, 2012).…”

Section: Globalization Leads To Economic Integrationmentioning

confidence: 99%

“…Conversely, given the presence of legal mechanisms that create certainty, foreign investment will be attracted (Holt, 2007;Kleinheisterkamp, 2000;Yong, 2010). The agreement to adopt cross-border bankruptcy laws will create a more efficient and favorable environment for investors (Blodgett & Kane, 2003;Holt, 2007;Mason, 2012).…”

Section: Territorialism and Universalismmentioning

confidence: 99%

MERCOSUR: A Cautionary Tale

Downey

2014

IBER

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“…The UNCITRAL Model Law on Cross‐Border Insolvency aims to achieve greater efficiencies in the administration of international insolvency cases . The Model Law has attained a measure of international acceptance, with the US and UK among the implementing states as well as Canada and Australia . In the US, the Model Law takes the form of a new Chapter 15 of the US Bankruptcy Code added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.…”

Section: Introductionmentioning

confidence: 99%

US exceptionalism and UK localism? Cross-border insolvency law in comparative perspective

McCormack

2016

Legal stud.

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This article addresses how the UNCITRAL Model Law on Cross Border Insolvency has been implemented and interpreted in the US and UK. The Model Law has attained a measure of international acceptance and is intended to achieve greater efficiencies in the administration of insolvency cases with transnational dimensions. But different manners of implementation in different countries and differing interpretations may hinder the prospects for harmonization and coordination of laws. The paper will address in particular whether US interpretations differ from those in the UK and whether the US decisions are so infused with 'American exceptionalism' that they cannot be relied upon as sure guides in other countries. ArticleThe UNCITRAL Model Law on Cross Border Insolvency aims to achieve greater efficiencies in the administration of international insolvency cases.1 The Model Law has attained a measure of international acceptance2 with the US and UK among the implementing States as well as Canada3 and Australia4. In the US, the Model Law takes the form of a new Chapter In addressing these issues, the paper is divided into six substantive sections followed by a general conclusion. The first section looks at general Model Law philosophy and the role of the Model Law within the national bankruptcy firmament.9 The second section considers the COMI test for the recognition of foreign insolvency proceedings. The third section considers timing and the jurisdictional tests; in particular at what point of time the application for recognition should meet the threshold requirements. The fourth section considers another jurisdictional hurdle apparently erected by the US courts -the need for the applicant for recognition to qualify as a 'debtor' under the US Bankruptcy Code. The fifth section addresses the availability of relief consequent on recognition under Chapter 15 and in particular whether the application of foreign insolvency law is permitted. The sixth section considers the application by the US courts of the public policy qualification on recognition and relief. In all of these sections, the paper will consider whether, and to what extent, US interpretations of the Model Law mirror those adopted in the UK; whether the US decisions are inspired by peculiarly US concerns and relatedly, whether the US decisions should be followed in other countries. In the general conclusion, the responses to the three research question are considered and reviewed. The Model Law Philosophy and its relationship to national law provisionsThis section will consider the general structure and principles of the Model Law; how its underlying philosophy has been understood in the US; how the Model Law has been incorporated in the US through Chapter 15 and whether this understanding and incorporation 9 In this paper the expressions 'bankruptcy' and 'insolvency' are used interchangeably.(a) matches that in other countries particularly the UK and (b) consequently is of sound precedential value for other countries.10The Model Law provides for the reco...

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Cross‐border Insolvency and Legal Transnationalisation

Cited by 5 publications

References 16 publications

Developing International Policy Guidelines for Managing Cross-Border Insolvencies in the Digital Economy

Developing International Policy Guidelines for Managing Cross-Border Insolvencies in the Digital Economy

MERCOSUR: A Cautionary Tale

US exceptionalism and UK localism? Cross-border insolvency law in comparative perspective

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