International Insolvency Review最新文献

This article examines the enforceability of ipso facto clauses in cross-border insolvency, with a focus on the landmark STX Pan Ocean case. This case highlighted divergent judicial approaches and the critical role of legal frameworks in conflict-of-laws scenarios, as evidenced by the contrasting outcome in the Hanjin Shipping case. In Fibria Celulose S/A v Pan Ocean Co Ltd, an English court ruled that the Korean administrator had failed to demonstrate that Korean law would render the ipso facto clause invalid. This outcome exposes a fundamental question: should the effect of insolvency on contracts be governed by the contract's governing law (lex contractus) or the law of the insolvency forum (lex fori concursus)? This article addresses the scholarly debate surrounding South Korean law's treatment of ipso facto clauses. It highlights the challenges and potential solutions to the lex contractus versus lex fori concursus dilemma.

This article employs bibliometric methodologies to examine the essential characteristics, disciplinary knowledge structures, and the prevailing themes and trends in the study of personal bankruptcy systems. The foundational data is derived from relevant literature documented in the Web of Science Core Collection database spanning from 2003 to 2024. The findings reveal that: (1) the volume and citation frequency of literature related to personal bankruptcy systems have exhibited exponential growth, with scholars from the United States playing a dominant role in this field; (2) research primarily focuses on law, economics, and sociology, indicating a trend towards interdisciplinary integration, though a stable core group of authors has yet to emerge; (3) existing studies predominantly discuss the economic effects, social implications, and legislative enhancements of personal bankruptcy systems; (4) current research concentrates on bankruptcy discharge, debt restructuring, and consumer credit issues. Future studies should pay greater attention to regional variations in personal bankruptcy systems, engage in empirical analysis, and enhance interdisciplinary integration to provide theoretical support and practical guidance for the refinement of personal bankruptcy legislation.

In Wright and others v Chappell and others (re BHS Group Ltd and others in liquidation) [2024] EWHC 1417 the English High Court found the BHS directors liable for both wrongful trading and misfeasance trading. In this article we consider the equivalent options for liquidators, and the potential defences available to directors, under the differing insolvency laws of the BVI, Cayman Islands, Guernsey and Jersey.

The pre-reorganisation system is an innovative corporate rescue mechanism that integrates and builds upon out-of-court restructuring and in-court bankruptcy reorganisation. It combines the dual advantages of both approaches and has been widely applied. As China actively promotes the establishment of an “open, transparent, standardised, and efficient market exit mechanism,” numerous local courts are exploring the pre-reorganisation system. This article uses diverse research methods—including text mining, empirical analysis and questionnaire surveys—to investigate its judicial practice. The findings show that: government and court dominance in pre-reorganisation is inevitable; initiation procedures are inappropriate and deviate from the system's original design; the system's positioning is misaligned, potentially causing case delays; and rule design is disordered with low accessibility, leading to unsatisfactory outcomes. The study proposes, firstly, to redefine the boundaries of administrative power, judicial power and market power in pre-reorganisation, to establish a tripartite interaction model scharacterised by administrative complementarity, judicial guidance and market dominance, thereby correcting the excessive involvement of non-market forces. Secondly, it suggests managing the out-of-court restructuring at the source (i.e., the front end) of the pre-reorganisation process. Thirdly, it aims to grasp the dimensions of judicial efficacy and public governance in the application of pre-reorganisation procedures, ensuring their correct implementation. Lastly, it seeks to construct a multiparty interest coordination mechanism that promotes benign collaboration and to improve safeguard mechanisms to ensure the smooth completion of the pre-reorganisation process and its effective connection with subsequent stages, such as liquidation and sreorganisation. This research constructs a diversified, multilevel rescue mechanism that is balanced, unified and efficient, providing a new case for international comparative studies and a new direction for China's spre-reorganisation rules.

The Hainan Free Trade Port Law grants Hainan unprecedented rule-making autonomy compared with other domestic pilot free trade zones. This autonomy provides a solid foundation for Hainan to develop cross-border insolvency rules for shipping. Despite the sector's rapid growth and increased investment from multinational and domestic shipping firms since the Hainan Free Trade Port's establishment, a significant gap in cross-border insolvency provisions remains within Chinese law. Effective 1 December 2021, the ‘Regulations on the Bankruptcy Procedure of Enterprises in Hainan Free Trade Port’ do not cover cross-border insolvency, underscoring the need for more specific legal frameworks. The Enterprise Bankruptcy Law of the People's Republic of China (‘Enterprise Bankruptcy Law’), particularly Article 5, serves as the primary legal foundation for cross-border insolvency in China. The application and interpretation of this provision have been further elucidated through judicial opinions issued by the Chinese Supreme People's Court. For instance, the Proceedings of the Work Conference of the National Courts on Bankruptcy Trial highlighted the principle of reciprocity and the need to protect creditors' rights, emphasising the balance between domestic creditors' interests and international cooperation. These judicial opinions highlight the dynamic development of cross-border insolvency law in China and the judiciary's significant role in its practical implementation. Although the Enterprise Bankruptcy Law of the People's Republic of China provides some guidance, its overly stringent and general nature fails to address the complexities of shipping-related cross-border insolvency. To protect creditors' and debtors' rights and manage the growing complexity of insolvency cases effectively, Hainan should establish specific rules for shipping insolvency. These rules should address jurisdictional conflicts between maritime and non-maritime courts, define the application of ship preference in insolvency law, clarify conditions for the recognition and relief of cross-border insolvency, and tackle barriers to international cooperation mechanisms in shipping insolvency. Building on this foundation, specific regulations can be formulated for managing jurisdictional conflicts, prioritising compensation for maritime liens, facilitating recognition and relief of foreign insolvency proceedings, and enhancing international cooperation in cross-border maritime insolvency. Developing these regulations will create a more legal, international, and convenient business environment at the Hainan Free Trade Port.

Opportunities in developing countries draw multinational companies, which include but are not limited to low-cost labour and abundant raw materials. As with any enterprise in any part of the world, there is a risk of business failure when multinational companies operate in developing countries. Consequently, the issue that arises is where insolvency proceedings should commence due to the multinational nature of these organisations. There is no international rule about where insolvency proceedings should open, with this being a matter for each country's laws. As a strategy, multinational companies may bypass developing countries' insolvency systems in favour of other jurisdictions with potentially favourable outcomes. For example, there may be a preference for the members of a multinational group to be handled under insolvency proceedings in one particular country, which may be far from the jurisdiction where the companies operated. This article is centred on why laws in developing countries may not be suitable for multinationals and what can be done to ensure cases do not end up in a court far away, in the United States of America (US) or in the United Kingdom (UK). The aim is to identify ways in which developing countries may reform their laws to encourage their use by multinational companies. The following are the key features to be examined to address the aim of the article: (i) to examine some of the justifications provided by multinational companies as to why developing countries are not suitable forums to commence insolvency proceedings; (ii) to make a general assessment of a selection of developing countries' insolvency laws and institutions; and (iii) to identify what essential values should be incorporated in developing countries' insolvency law reforms for effective insolvency laws.