acase@tulane.edu / Cross-border cases involving admiralty and bankruptcy law are troublesome because of the fundamentally different natures of the policy objectives of these two private avenues. The current declining shipping market shows the urgent need to address these issues at both a theoretical and practical level. The basic problem considered in this dissertation is what should happen when a ship owner files an insolvency proceeding in one country, while at the same time facing an in rem action against its vessel in another country? In other words, should the in rem action arising in one country be stayed or dismissed because of the existence of insolvency proceedings in another country? This dissertation also discusses the relevant issues regarding the determination of the “center of main interest” of an offshore shipping company and the scope of a debtor’s assets. The author uses a comparative law analysis, selecting four leading shipping countries—Australia, the U.K., the U.S., and Singapore—and examining their approaches to the treatment of maritime claimants. The author also proposes a solution to help eliminate the ambiguity occurred in maritime cross-border insolvency cases under the UNCITRAL Model Law regime, with an eye to enhancing the development of the shipping industry. / 1 / Jingchen Xu

Due to economic globalisation and integration, as well as the global economic downturn since 2008, the appearance of cross-border insolvencies have increased dramatically. This increase in cross-border insolvencies has led to a demand for a general and fair system to administer cross-border insolvencies globally. In 1997 United Nations Commission on International Trade Law (UNCITRAL) promulgated the Model Law on Cross-Border Insolvency to act as an aide to countries in globally administering cross-border insolvencies in a uniform way. South Africa, and the United States of America (USA), subsequently accepted this Model Law approach into their respective national legislation. South Africa did this through the Cross-Border Insolvency Act 42 of 2000 (CBIA) and the USA by way of Chapter 15 of the United States Bankruptcy Code. The CBIA is, however, not currently in operation as the Minister of Justice has not yet designated countries to which the CBIA will apply. Chapter 15 is, however, effective and operational in the USA. The two theories that underlie cross-border insolvencies – universalism and territorialism – have been further refined in the theories of modern universalism and modern territorialism. Supporters of modern universalism hailed the acceptance of the Model Law into the national legislation of countries as a victory over modern territorialism as the characteristics of modern universalism can be found throughout the Model Law. Modern universalism is, however, seen as theory which endangers the interests of local creditors as it favours universal administration of assets. However, modern territorialism is, on the other hand, acknowledged to protect the interests of local creditors. Therefore an investigation into the application of Chapter 15 by the courts of the USA will indicate if the interests of local creditors are sufficiently protected under this so-called modern universalistic approach and, if indeed so, how this is achieved. As the CBIA is neither operational nor effective in South Africa, cross-border insolvencies are governed by the common law and the precedents set down in case law. Writers and case law indicate that South Africa uses a system that can be described as between pure territorialism and modern territorialism. It can therefore be accepted that South Africa currently protects the interests of its local creditors sufficiently. The question then arises if, when South Africa made the CBIA effective and operational, would local creditors‟ interests still be sufficiently protected? As the CBIA and Chapter 15 are both based on the Model Law, they are basically identical in most aspects. Therefore an investigation into the application of Chapter 15 will also indicate if the CBIA will sufficiently protect the interests of local creditors. This dissertation thus attempts, through an investigation of the applications lodged under Chapter 15, to indicate that the USA still succeeds in protecting the interests of its local creditors. The USA achieves this through utilising mechanisms made available through Chapter 15 itself. Consequently this dissertation shows that South Africa can make the CBIA operational, while still sufficiently protecting the interests of its local creditors. / Thesis (LLM (Import and Export Law))--North-West University, Potchefstroom Campus, 2013

Due to economic globalisation and integration, as well as the global economic downturn since 2008, the appearance of cross-border insolvencies have increased dramatically. This increase in cross-border insolvencies has led to a demand for a general and fair system to administer cross-border insolvencies globally. In 1997 United Nations Commission on International Trade Law (UNCITRAL) promulgated the Model Law on Cross-Border Insolvency to act as an aide to countries in globally administering cross-border insolvencies in a uniform way. South Africa, and the United States of America (USA), subsequently accepted this Model Law approach into their respective national legislation. South Africa did this through the Cross-Border Insolvency Act 42 of 2000 (CBIA) and the USA by way of Chapter 15 of the United States Bankruptcy Code. The CBIA is, however, not currently in operation as the Minister of Justice has not yet designated countries to which the CBIA will apply. Chapter 15 is, however, effective and operational in the USA. The two theories that underlie cross-border insolvencies – universalism and territorialism – have been further refined in the theories of modern universalism and modern territorialism. Supporters of modern universalism hailed the acceptance of the Model Law into the national legislation of countries as a victory over modern territorialism as the characteristics of modern universalism can be found throughout the Model Law. Modern universalism is, however, seen as theory which endangers the interests of local creditors as it favours universal administration of assets. However, modern territorialism is, on the other hand, acknowledged to protect the interests of local creditors. Therefore an investigation into the application of Chapter 15 by the courts of the USA will indicate if the interests of local creditors are sufficiently protected under this so-called modern universalistic approach and, if indeed so, how this is achieved. As the CBIA is neither operational nor effective in South Africa, cross-border insolvencies are governed by the common law and the precedents set down in case law. Writers and case law indicate that South Africa uses a system that can be described as between pure territorialism and modern territorialism. It can therefore be accepted that South Africa currently protects the interests of its local creditors sufficiently. The question then arises if, when South Africa made the CBIA effective and operational, would local creditors‟ interests still be sufficiently protected? As the CBIA and Chapter 15 are both based on the Model Law, they are basically identical in most aspects. Therefore an investigation into the application of Chapter 15 will also indicate if the CBIA will sufficiently protect the interests of local creditors. This dissertation thus attempts, through an investigation of the applications lodged under Chapter 15, to indicate that the USA still succeeds in protecting the interests of its local creditors. The USA achieves this through utilising mechanisms made available through Chapter 15 itself. Consequently this dissertation shows that South Africa can make the CBIA operational, while still sufficiently protecting the interests of its local creditors. / Thesis (LLM (Import and Export Law))--North-West University, Potchefstroom Campus, 2013

The world is continuously becoming a smaller and smaller place. It has become a global community of sorts merely divided by imperceptible borders that are easily transversed by ever-evolving technological advances in the fields of business, travel, communication and such, each regulated by its own set of domestic laws and regulations. Hordes of South Africans immigrate to Australia annually due to, among others, economic and political uncertainty. These ex-patriots generally leave behind assets and creditors in South Africa whilst acquiring new ones wherever they choose to establish themselves. This serves as basis for potential future cross-border insolvency issues. Furthermore, entities such as companies trading internationally, and multinational companies with branches and offices in more than one state, have property and creditors in many different jurisdictions. Should such a company be liquidated, it would give rise to questions of jurisdiction, the procedures to be followed, the appointment of a liquidator(s) and the distribution of assets, to name a few. The absence of a universal cross-border insolvency law leaves room for much uncertainty and confusion. What is of importance for purposes of this research is to clarify all prevailing uncertainties regarding the rights and obligations of the foreign representative and the foreign creditor in cross-border insolvency matters. The foreign representative is the person or entity appointed to administer the reorganisation or liquidation of the insolvent debtor’s assets in a foreign proceeding. The inconsistency in cross-border insolvency regulations between South Africa and Australia has the consequence that there is no guarantee that a foreign creditor in one state will be treated the same as a foreign creditor in terms of the domestic laws of the other, as the Model Law aims to do. The situation would have been significantly less complicated had the South African Cross-Border Insolvency Act been in force at present and had Australia been designated as a state to which this Act would apply. In that case, the treatment of foreign representatives and foreign creditors would be of a reciprocal nature. This dissertation attempts, through an investigation of the South African and Australian domestic insolvency laws, to ascertain the position of the foreign representative and foreign creditors pre and post incorporation of the Model Law. Consequently this dissertation compares the legal positions of these parties in terms of South African and Australian national insolvency legislation. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2014

The world is continuously becoming a smaller and smaller place. It has become a global community of sorts merely divided by imperceptible borders that are easily transversed by ever-evolving technological advances in the fields of business, travel, communication and such, each regulated by its own set of domestic laws and regulations. Hordes of South Africans immigrate to Australia annually due to, among others, economic and political uncertainty. These ex-patriots generally leave behind assets and creditors in South Africa whilst acquiring new ones wherever they choose to establish themselves. This serves as basis for potential future cross-border insolvency issues. Furthermore, entities such as companies trading internationally, and multinational companies with branches and offices in more than one state, have property and creditors in many different jurisdictions. Should such a company be liquidated, it would give rise to questions of jurisdiction, the procedures to be followed, the appointment of a liquidator(s) and the distribution of assets, to name a few. The absence of a universal cross-border insolvency law leaves room for much uncertainty and confusion. What is of importance for purposes of this research is to clarify all prevailing uncertainties regarding the rights and obligations of the foreign representative and the foreign creditor in cross-border insolvency matters. The foreign representative is the person or entity appointed to administer the reorganisation or liquidation of the insolvent debtor’s assets in a foreign proceeding. The inconsistency in cross-border insolvency regulations between South Africa and Australia has the consequence that there is no guarantee that a foreign creditor in one state will be treated the same as a foreign creditor in terms of the domestic laws of the other, as the Model Law aims to do. The situation would have been significantly less complicated had the South African Cross-Border Insolvency Act been in force at present and had Australia been designated as a state to which this Act would apply. In that case, the treatment of foreign representatives and foreign creditors would be of a reciprocal nature. This dissertation attempts, through an investigation of the South African and Australian domestic insolvency laws, to ascertain the position of the foreign representative and foreign creditors pre and post incorporation of the Model Law. Consequently this dissertation compares the legal positions of these parties in terms of South African and Australian national insolvency legislation. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2014

Magister Legum - LLM / This paper argues that there is a need for an improved cross-border insolvency regime as the common law principles applied in Namibia are outdated and thus ill-equipped to deal with present-day complex issues of cross-border insolvency. The lack of literature on issues of crossborder insolvency belies the importance of cross-border insolvency in African developing countries like Namibia who seek to encourage trade and investment in the hope of achieving economic development. In the final section of chapter one, the paper will consider the Model Law as the basis needed to develop clear, fair and predictable rules to effectively deal with the various aspects of cross-border insolvencies in Namibia.

This thesis offers a comparative study of Chinese and the U.S. legislations on the issue of cross-border insolvency. China has included one article concerning this issue in its Enterprise Bankruptcy Law promulgated in 2006. Four years after that, when facing a real case, it is found that the legislation is too preliminary to be used. In the meantime, great efforts have been made among many western countries in order to promote international cooperation on this issue. The United States is one of the most active countries. This thesis analyzes the Chinese version of cross-border insolvency legislation, factor by factor. It also does case study of mostly U.S. cases and some other countries’ cases and tries to find out how the courts interpret the corresponding factors. In doing so, it hopes to improve the Chinese legislation by taking international experience as reference.

This thesis offers a comparative study of Chinese and the U.S. legislations on the issue of cross-border insolvency. China has included one article concerning this issue in its Enterprise Bankruptcy Law promulgated in 2006. Four years after that, when facing a real case, it is found that the legislation is too preliminary to be used. In the meantime, great efforts have been made among many western countries in order to promote international cooperation on this issue. The United States is one of the most active countries. This thesis analyzes the Chinese version of cross-border insolvency legislation, factor by factor. It also does case study of mostly U.S. cases and some other countries’ cases and tries to find out how the courts interpret the corresponding factors. In doing so, it hopes to improve the Chinese legislation by taking international experience as reference.

This thesis is a study on solutions for cross-border insolvency of multinational corporate groups, with particular reference to the EU Regulation on insolvency proceedings recast 2015 (EIR Recast). Multinational corporate groups are important players in the modern business world; how to treat them in cross-border insolvency context has been hotly debated. The main issue is how to preserve the value of the group under circumstances where member companies in the same group are in more than one country and subject to more than one set of insolvency law. The existing solutions include substantive consolidation, procedural consolidation proposed by cross-border insolvency law scholars, market/hybrid legal solutions aiming to avoid group-wide insolvency, and the EIR recast which unprecedentedly provides 'group coordination proceedings' to respond to this issue as a procedural cooperation framework. All these solutions will be examined in this thesis in the light of insolvency law/cross-border insolvency law theories and multinational enterprises theories. The aim of this thesis is to examine the existing solutions for cross-border insolvency of multinational corporate groups on the basis of a combination of insolvency law/cross-border insolvency law theories and multinational enterprises theories. The thesis starts from theoretical grounds of corporate rescue and argues that preservation of going concern value and respecting entity law are the goals of corporate rescue law. It further considers theories regarding multinational enterprises and its implications on developing cross-border insolvency solutions for multinational corporate groups. With an understanding of relevant theories, the thesis examines the procedural consolidation solution which focuses on insolvency jurisdictional rules. The result is that procedural consolidation may not be in line with the reality of how the groups are operated and may not provide certainty to the creditors and market. The thesis moves on to examine the market/hybrid legal solutions which purport to be able to avoid group-wide cross-border insolvency. It shows certain merits of these solutions and also reveals the limitations and uncertainty of them. Finally, it argues that a general insolvency cooperation framework- the new group coordination proceedings- is desirable to work as an alternative to the above-mentioned solutions with improved certainty. The thesis tries to improve the utility of the proceedings by providing a recommendation to one of their main weaknesses-the opt-out mechanism.

Bill C-55 proposes amendments to the Canadian Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act tailored on the procedural framework contemplated by the UNCITRAL Model Law on Cross-Border Insolvency. This thesis demonstrates that implementation of these amendments will bring Canadian insolvency law into closer---but by no means complete---alignment with the doctrine of modified universalism reflected in the Model Law. To this end, the thesis undertakes an analysis of the different theoretical approaches to cross-border insolvency, shows the importance of instrument choice in determining the level of global harmonization attained, and reviews recent projects of harmonization. This is followed by a close comparative analysis of the extent of compliance of the provisions of Bill C-55 with the Model Law, an analysis that demonstrates the shortcomings of model laws and, somewhat paradoxically, their important role and function in eventually bringing about global legal harmonization.