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

This study investigates the effect of the debt counselling procedure, as well as the other provisions of the National Credit Act, on the choice of the debtor or creditor to make use of the sequestration procedure in terms of the Insolvency Act. The Insolvency Act and the procedures it makes available are discussed in detail. There are two distinguishable options, namely voluntary surrender and compulsory sequestration, and particular focus is placed on the 'advantage to creditors' requirement. This requirement is of the utmost importance because the court will seldom if ever grant a sequestration order if it cannot be proven that the creditors will gain at least some form of benefit from it. The ‘advantage’ requirement is also applicable with regards to compulsory sequestration, but the onus of proof is not as strict as with voluntary surrender. The aim of this requirement is to protect creditors so that they could at least recover part of their debt. The second chapter deals with the procedure in accordance with section 74 of the Magistrates Court Act, referred to as an administration order. This is another type of debt relief available to debtors. However, there are strict requirements that have to be met before a debtor will be allowed to make use of this procedure. These requirements include that the debt owed by the debtor should not exceed R50 000 and the composition of the debt should not be complicated. This procedure is not applied very often as very few debtors owe less that R50 000. The procedures brought into life by the Credit Act are of the utmost importance for this study. The Credit Act added various new terms to the law, including overindebtedness, reckless credit, debt counselling and debt review. Each of these terms’ meaning and their effect on current procedures, as prescribed by legislation, are analysed. Following various court judgments it has become clear that the Credit Act has in fact changed the legal position drastically. In my opinion the debtor is afforded much more protection in terms of the Credit Act when it is compared to the protection that he received in terms of the Insolvency Act. Various mandatory steps were added which a creditor, or credit provider in terms of the Credit Act, must comply with before he will be allowed to claim a debt from a debtor, or consumer in terms of the Credit Act. This creates a situation where the creditor is sometimes disadvantaged since the debtor is granted a reprieve and the period he is allowed to repay his debts is often extended without the consent or input from the creditor. As soon as a debt restructuring order has been made by court, the creditor cannot take the decision on review. Regarding the relationship between insolvency procedures and debt review, it has happened on more than one occasion that creditors as well as debtors have made use of sequestration procedures only then to be forced by the courts to rather make use of debt review. This means that both creditors and debtors no longer have a choice regarding which procedure, and in accordance with which act, they would like to pursue. I am of the opinion that despite this there still is a place for both procedures in South African law. The best procedure to follow would depend on the special circumstances of each individual case. / Thesis (LL.M.)--North-West University, Potchefstroom Campus, 2012.

This study investigates the effect of the debt counselling procedure, as well as the other provisions of the National Credit Act, on the choice of the debtor or creditor to make use of the sequestration procedure in terms of the Insolvency Act. The Insolvency Act and the procedures it makes available are discussed in detail. There are two distinguishable options, namely voluntary surrender and compulsory sequestration, and particular focus is placed on the 'advantage to creditors' requirement. This requirement is of the utmost importance because the court will seldom if ever grant a sequestration order if it cannot be proven that the creditors will gain at least some form of benefit from it. The ‘advantage’ requirement is also applicable with regards to compulsory sequestration, but the onus of proof is not as strict as with voluntary surrender. The aim of this requirement is to protect creditors so that they could at least recover part of their debt. The second chapter deals with the procedure in accordance with section 74 of the Magistrates Court Act, referred to as an administration order. This is another type of debt relief available to debtors. However, there are strict requirements that have to be met before a debtor will be allowed to make use of this procedure. These requirements include that the debt owed by the debtor should not exceed R50 000 and the composition of the debt should not be complicated. This procedure is not applied very often as very few debtors owe less that R50 000. The procedures brought into life by the Credit Act are of the utmost importance for this study. The Credit Act added various new terms to the law, including overindebtedness, reckless credit, debt counselling and debt review. Each of these terms’ meaning and their effect on current procedures, as prescribed by legislation, are analysed. Following various court judgments it has become clear that the Credit Act has in fact changed the legal position drastically. In my opinion the debtor is afforded much more protection in terms of the Credit Act when it is compared to the protection that he received in terms of the Insolvency Act. Various mandatory steps were added which a creditor, or credit provider in terms of the Credit Act, must comply with before he will be allowed to claim a debt from a debtor, or consumer in terms of the Credit Act. This creates a situation where the creditor is sometimes disadvantaged since the debtor is granted a reprieve and the period he is allowed to repay his debts is often extended without the consent or input from the creditor. As soon as a debt restructuring order has been made by court, the creditor cannot take the decision on review. Regarding the relationship between insolvency procedures and debt review, it has happened on more than one occasion that creditors as well as debtors have made use of sequestration procedures only then to be forced by the courts to rather make use of debt review. This means that both creditors and debtors no longer have a choice regarding which procedure, and in accordance with which act, they would like to pursue. I am of the opinion that despite this there still is a place for both procedures in South African law. The best procedure to follow would depend on the special circumstances of each individual case. / Thesis (LL.M.)--North-West University, Potchefstroom Campus, 2012.

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.