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.

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that there is a need for an improved cross-border insolvency regime as the common law principles applied in Namibia are outdated and thus ill-equipped to deal with present-day complex issues of cross-border insolvency.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.

No description available.

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

A l’heure de la mondialisation et de la croissance permanente des échanges entre les Etats, la question de la faillite internationale est devenue une problématique de choix, au coeur d’un système aux multiples défaillances. Le jeu du marché ne s’opère plus au regard d’un territoire et d’un Etat, mais véritablement au regard d’un espace économique qui dépasse largement les frontières de la France. Le règlement communautaire 1346/2000 relatif aux procédures d'insolvabilité, entré en vigueur le 31 mai 2002, est un premier aboutissement en la matière au niveau de l’Union européenne. Il appréhende l’insolvabilité transfrontière en réussissant à articuler procédure universelle et procédure territoriale et en liant la compétence juridictionnelle au droit substantiel applicable. La lex fori concursus , à portée universelle, est désignée par le seul critère de compétence applicable pour l'ouverture de la procédure principale d'insolvabilité : le centre des intérêts principaux du débiteur. Notion autonome et incontestablement centrale, elle ne bénéficie pas d'une définition établie. Présumée coïncider avec le siège statutaire pour le débiteur personne morale, l'acception de la notion de centre des intérêts principaux s'est faite de manière prétorienne au fil des années. A l’heure de la révision du Règlement, sa définition n'est toujours pas inscrite à l'article 2 du règlement 1346/2000. Néanmoins, cela s'avère être un avantage lorsque l'on se positionne dans une logique de dimension internationale, dans laquelle le concept de centre des intérêts principaux tend également à s'inscrire. / In the era of globalisation and permanent growth of trade between States, the matter of cross-border insolvency has become an issue of choices at the heart of a system that shows multiple failures. The market rules are no longer governed by a territory or a State, but truly by an economic area that extends far beyond the borders of France. The EC regulation 1346/2000 on insolvency proceedings that came into effect on the 31st of May, 2002 is the first achievement on this matter for the European Union. It apprehends cross-border insolvency while successfully articulating both the universal and territorial proceedings as well as binding jurisdiction with the applicable substantive law. The lex fori concursus with its universal scope is designated by the sole criterion of applicable jurisdiction for initiating the main procedure of insolvency: the debtor's centre of main interests. As an autonomous and undeniably central concept, it has no settled definition. The understanding of the centre of main interests concept which supposedly coincides with the registered office for the legal person debtor, has been put in the hands of Court over the years. Such definition is still not covered in Article 2 of the 1346/2000 regulation. However, this turns out to be an advantage on an international dimension when the concept of centre of main interests tends also to be considered on a world-wide basis.

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

An increase in economic globalisation and international trade the past two decades has amounted to an increase in the number of multinational enterprises that conduct business, own assets and have debt in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross–border insolvency (CBI). CBI refers to the situation where insolvency proceedings are initiated in one jurisdiction with regard to a debtor’s estate and the debtor also has property, debt or both in at least one other jurisdiction. When a multinational enterprise is in financial distress, the structure of such an enterprise poses significant challenges to the question of how to address its insolvency. This is due to the fact that, although the multinational enterprise is found globally in different jurisdictions around the world, the laws addressing its liquidation are local. The possibility of restructuring the multinational enterprise or liquidating it in order the satisfy creditor claims optimally depends greatly upon the ease with which the insolvency law regimes of multiple jurisdictions can facilitate a fair and timely resolution to the financial distress of that multinational enterprise. The legal response to this problem has produced two important international instruments which were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross–Border Insolvency in 1997, which has been adopted by nineteen countries including the United States of America (in the form of Chapter 15 of the US Bankruptcy Code) and South Africa (in the form of the Cross–Border Insolvency Act 42 of 2000). Secondly, the European Union adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. These two instruments address the management of general default by a debtor and are aimed at providing a legal framework which seeks to enhance legal certainty, cooperation, coordination and harmonization between states in CBI matters throughout the world. After discussing the viewpoints of various writers, it seems clear that “modified universalism” is the correct approach towards CBI matters globally. This is mainly due to the fact that the main international instruments currently dealing with CBI matters are all based upon “modified universalism”. By looking at various EU and US case law it is also evident that, although there is currently still no established test for the determination of the “centre of main interest” (COMI) of a debtor–company under Chapter 15, there is a difference in the approach adopted by courts in the EU and those in the US in this regard. This dissertation further discusses the requirements for a debtor–company to possess an “establishment” for the purpose of opening foreign non–main insolvency proceedings in a jurisdiction as well as the choice–of–law considerations in CBI matters. / Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.

An increase in economic globalisation and international trade the past two decades has amounted to an increase in the number of multinational enterprises that conduct business, own assets and have debt in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross–border insolvency (CBI). CBI refers to the situation where insolvency proceedings are initiated in one jurisdiction with regard to a debtor’s estate and the debtor also has property, debt or both in at least one other jurisdiction. When a multinational enterprise is in financial distress, the structure of such an enterprise poses significant challenges to the question of how to address its insolvency. This is due to the fact that, although the multinational enterprise is found globally in different jurisdictions around the world, the laws addressing its liquidation are local. The possibility of restructuring the multinational enterprise or liquidating it in order the satisfy creditor claims optimally depends greatly upon the ease with which the insolvency law regimes of multiple jurisdictions can facilitate a fair and timely resolution to the financial distress of that multinational enterprise. The legal response to this problem has produced two important international instruments which were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross–Border Insolvency in 1997, which has been adopted by nineteen countries including the United States of America (in the form of Chapter 15 of the US Bankruptcy Code) and South Africa (in the form of the Cross–Border Insolvency Act 42 of 2000). Secondly, the European Union adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. These two instruments address the management of general default by a debtor and are aimed at providing a legal framework which seeks to enhance legal certainty, cooperation, coordination and harmonization between states in CBI matters throughout the world. After discussing the viewpoints of various writers, it seems clear that “modified universalism” is the correct approach towards CBI matters globally. This is mainly due to the fact that the main international instruments currently dealing with CBI matters are all based upon “modified universalism”. By looking at various EU and US case law it is also evident that, although there is currently still no established test for the determination of the “centre of main interest” (COMI) of a debtor–company under Chapter 15, there is a difference in the approach adopted by courts in the EU and those in the US in this regard. This dissertation further discusses the requirements for a debtor–company to possess an “establishment” for the purpose of opening foreign non–main insolvency proceedings in a jurisdiction as well as the choice–of–law considerations in CBI matters. / Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.