International Insolvency Review最新文献

There are 12 countries in Europe without any consumer bankruptcy legislation, and almost half of them are located in the Western Balkans. The only available solution for debt repayment in the region is the enforcement procedure. This article identifies the reasons behind the non-existence of consumer bankruptcy, and the challenges that Western Balkan countries face currently. Specifically, the article examines the rationale behind the need for consumer bankruptcy law enactment and the reasoning supporting the adoption of distinct consumer bankruptcy laws in the Western Balkans, encompassing economic, legal and cultural dimensions. Analysis of the absence of consumer bankruptcy legislation in the Western Balkans and the reasons behind it is terra incognita in the literature and the main contribution that the author offers. For this purpose, the author used qualitative research methods and conducted a qualitative study consisting of semi-structured one-on-one interviews with legal professionals, policymakers and enforcement officials using open-ended questions. The insights gained provide valuable implications for future consumer bankruptcy reforms in the region. The research contributes to the existing body of literature by offering a unique understanding of the phenomenon in European countries where currently there is no solution for debt adjustment.

In a constantly evolving world, it is necessary to safeguard trade and investment relations through the establishment of clear rules for cooperation between national courts and practitioners from different jurisdictions on cross-border insolvency cases. While general provisions in national law or in treaties governing cooperation on foreign civil proceedings are helpful, specific provisions in insolvency legislation that regulate the management of insolvency proceedings with a cross-border element contribute to legal certainty and support the flow of international trade and foreign direct investment. These may even signal to potential investors the openness of a particular jurisdiction to foreign investment and trade. A set of rules or framework for international cooperation on cross-border insolvency cases enables efficient judicial decision-making and positively influences insolvency outcomes, from the preservation of assets of the insolvency estate to the fair allocation of such assets to affected creditors and the successful rescue of the insolvent business. The importance of this subject matter is exemplified by global efforts to achieve greater cross-border insolvency cooperation and harmonisation on substantive insolvency law. Such efforts include the UNCITRAL Model Law on Cross-border Insolvency and Legislative Guide on Insolvency Law, as well as regional initiatives such as the Recast European Union Insolvency Regulation and the Uniform Law on Insolvency Procedures by the Organization for the Harmonization of Business Law in Africa, which have harmonised cross-border insolvency rules across member states. This article uses economic analysis, recent jurisprudence and legal theory to explore the importance and evolution of cross-border insolvency frameworks in selected Balkan countries: Greece, Romania and Serbia.

The legislative competence concerning insolvency in Bosnia and Herzegovina (‘BH’) lies with two entities – the Federation of BH and the Republic of Srpska – and the autonomous Brčko District. The reform of insolvency laws started 20 years ago and was influenced by new insolvency legislation in neighbouring countries. In recent years, BH insolvency laws have undergone major changes promoted by the World Bank and inspired by the European Union's activity on introducing measures aiming to prevent insolvency – Commission Recommendation 2014/135 on a new approach to a business failure and insolvency and Directive (EU) 2019/1023 on preventive restructuring and insolvency. The two BH entities and the Brčko District adopted new insolvency laws laying down the court's restructuring procedure. Besides, the Republic of Srpska enacted a special law on out-of-court financial restructuring. A debtor or a creditor can initiate restructuring in court in case of a debtor's imminent inability to pay debts. The restructuring procedure resembles the insolvency process, with the court managing the process within a strict timeline. The opening of the procedure activates the automatic stay of enforcement actions against the debtor. The court appoints a trustee among qualified insolvency administrators to list the debtor's property items and creditors' claims and control the debtor's operations by the end of the process. The role of creditors is minimised. They notify claims to the court and vote on a restructuring plan proposed by a debtor. BH laws fail to outline the scope of restructuring measures; they merely distinguish financial and operational restructuring. BH laws do not classify creditors according to the commonality of interests principle and consequently do not allow cram-down across classes. Measures concerning early warning of creditors on the debtor's imminent inability to pay debts are missing in the laws. Provisions for special treatment of new financing are also lacking. Out-of-court restructuring is possible in BH within the framework of general contract law. Besides, the Republic of Srpska legislator made negotiations on voluntary out-of-court restructuring possible with the assistance of the Chamber of Commerce RS.

In 2014, Chilean bankruptcy legislation underwent a significant change with the enactment of Law 20,720. Among its innovations is incorporating individuals as insolvency subjects and regulating two insolvency proceedings especially designed for them. However, although almost 10 years have elapsed since the entry of this legislation into force, there are few empirical studies on the profile of the individuals who use these procedures. This article presents data from unpublished and exploratory empirical research, suggesting the participation of different types of debtors in the personal insolvency system and raising the need for differentiated procedural tracks, particularly for the most vulnerable ones.

The article examines the Italian approach to farming enterprises' insolvency. In Italy, farmers were traditionally excluded from the application of insolvency proceedings regardless of their corporate status. In the last decade, they have gained limited access to special insolvency procedures developed for consumers and small enterprises. The study seeks to compare the Italian perspective with the insolvency frameworks of the other European Union (EU) member states and place the Italian approach within the broader EU insolvency framework. The article questions the validity of the Italian exclusion of farmers from the major insolvency proceedings in light of the modern rationales of insolvency law (i.e., restructuring, rescuing and second chances). In doing so, the article has a fourfold structure. First, the article analyses the current Italian approach to the insolvency of farming enterprises. Second, it compares the Italian approach to the regimes concerning farmers' access to insolvency proceedings of the other 26 EU member states. Third, it analyses the EU insolvency framework concerning farmers' insolvency and evaluates the impact of the Directive on Restructuring and Insolvency on the rationale of the Italian insolvency regime. Last, the article seeks to put forward policy recommendations for future reforms of farmers' insolvency in Italy.

The approach to recognition and assistance in cross-border insolvency proceedings in China has tended to be restrictive. In contrast, the approach of Chinese courts to foreign arbitrations has been different. Arbitration has been the favoured means of dispute resolution in China's efforts to participate in world trade and the global economy after 1978. Accordingly, the arbitration legal system has advanced relatively quickly in line with international norms set out under the New York Convention. There are good prospects for recognition of foreign arbitral awards in China and arbitration is well integrated with China's domestic insolvency system. In contrast, China's attitude towards foreign insolvencies remains cautious, even in spite of an arrangement with the Hong Kong Special Administrative Region. We consider how foreign arbitrations might fare in Chinese insolvencies. We also consider whether the openness to international arbitrations can ameliorate any aspects of the presently restrictive approach to cross-border insolvencies.

The Swiss personal bankruptcy procedure today bears a striking resemblance to the 2000-year-old ancient Roman form of debt relief called cessio bonorum. But not for long. Switzerland is finally ready to join its European neighbors in abandoning this outmoded Roman approach to overindebtedness, modernizing its personal insolvency law to make real debt relief more available, more effective, and more suitable to the 21st century. This article describes the surprising parallel between the ancient Roman procedure and current Swiss personal bankruptcy practice. It reveals why this antiquated approach is ineffective to achieve the modern goals of personal insolvency policy. It then describes how current law elsewhere pursues these goals, examining the increasingly liberal personal debt relief procedures in neighboring Austria, Germany, France, Italy, and Liechtenstein as comparative foils for an evaluation of the pending Swiss reform proposal. Judging by the formal, recorded reactions of the political parties and cantons to this well-structured proposal, Swiss lawmakers seem poised to usher their personal bankruptcy law into the modern era at long last.

This article critically examines s426 Insolvency Act 1986 and its position in the UK’s Cross Border insolvency firmament. It traces the origins of s426 to a recommendation of the 1982 Cork Committee and notes that it replaced s122 Bankruptcy Act 1914 while giving the substantive provisions a more contemporary feel and modern gloss. The article notes limitations on the operation of s426 in that it only applies to cooperation between courts and then only courts in designated countries and territories. Nevertheless, s426 is potentially wider than the UK Uncitral Model Law implementation provisions. S426 enables the UK court to apply the provisions of foreign insolvency law in responding to a request from a foreign court. In the UK the Uncitral Model Law provisions have been construed as not having this effect.

This study offers a comprehensive examination of the goals and theoretical foundations of the new Ethiopian insolvency regime. The study identifies and examines the goals of insolvency in Ethiopia to ascertain which interests are protected and how. The study also identifies and analyses the theoretical foundations of the new Ethiopian insolvency law in determining the parties' interests to be protected. The study also evaluates the alignment of the goals and theories of Ethiopia's latest insolvency regime with the global best practice. The study underlines that, as a contemporary legislation, the new Ethiopian insolvency law follows an eclectic approach in determining its goals. The law aims to safeguard the interests of creditors and other stakeholders in the proceeding, thereby trying to strike a balance. However, the main goal of Ethiopian insolvency law is to protect creditors' interests. The study also found that the modern theories of insolvency worldwide have highly impacted Ethiopian insolvency law in determining and prioritising its goals and interests to be protected. The study underlines that Ethiopian insolvency law's theoretical foundations are also eclectic, with a substantial preference for safeguarding creditors' interests while protecting the interests of other insolvency stakeholders. The study also finds that Ethiopian insolvency law is modern, and its goals and theoretical foundations align with international best practices. Based on the discussions, the study also suggests the focal points and trajectory of future insolvency reforms in Ethiopia.