PhDThe ongoing process of globalisation has witnessed an increase in cross-border
corporate insolvencies involving multinational enterprises (MNEs). Yet, national
insolvency laws have proven themselves ill-equipped to handle such matters in an
international setting. Responsible policy-makers and academics argue for the creation of a
viable international insolvency approach.
This debate has revolved around an "either-or" spectrum of (1) the theory of
"Universality" that proposes a single court charged with implementing a single
bankruptcy law to worldwide claimants, and (2) the theory of "Territoriality" that asserts
each jurisdiction can only adjudicate the debtor's insolvency on a territorial basis and
distribute local assets to local claimants. But, this debate yet has yielded no practical
solution. This thesis suggests that these two theories are not mutually exclusive, and both
may be utilized in developing a pragmatic and "better" international insolvency
framework.
To date, there has been one non-binding international instrument based on
moderate choice of forum/law provisions: the UNCITRAL Model Law on Cross-Border
Insolvency (the Model Law). Although the Model Law has significant merits, it falls
short of the broader expectations minimally acceptable international insolvency system
should fulfill. In addition, the regional European Union Council Regulation on Insolvency
Proceedings (the Regulation) has recently been enacted. This thesis will argue that, while
recognizing the special sui generic nature of the EU framework, important lessons can be
learned from this Regulation, and when combined with certain elements from a revamped
Model Law approach, a "better" international insolvency framework may be found. The
concluding observations of this thesis will touch upon a range of existing international
vehicles that may be complementary or alternative vehicles to channel interim reforms.
Unless otherwise expressly indicated, this thesis speaks as of 1 January 2006
