Date of Award

3-31-2022

Degree Type

Thesis

Degree Name

Doctor of Law (SJD)

Department

Law

First Advisor

Professor Dr. Remigus Chibueze

Second Advisor

Professor Dr. Christian Nwachukwu Okeke

Third Advisor

Professor Dr. Michael C. Van Walt

Abstract

In recent years, there has been a rapid increase in transnational bankruptcy cases around the world. Taking the United States as an example, from 2005 to June 30, 2020, the U.S. bankruptcy court has accepted 1488 procedural cases under Chapter 15 of the U.S. bankruptcy Code. “Cross-border bankruptcy cases filed in the U.S. under chapter 15 of the Bankruptcy Code on behalf of foreign businesses doubled during 2020 and are on pace to set another record-breaking year in 2021 (with more than 123 filings in the first half of the year alone). Foreign debtors are increasingly looking to chapter 15 as a vehicle for enjoining creditor actions against their U.S. assets pending completion of foreign bankruptcy proceedings, enforcing foreign court orders issued or plans approved in such proceedings, avoiding preferential and fraudulent transfers involving U.S. transferees, and seeking discovery from U.S.-based parties in connection with pending or anticipated litigation.”[1]

At the same time, the international community is experiencing a golden period of development in the construction of transnational bankruptcy. International organizations and industry associations represented by the European Union, the United Nations Commission and the INSOL International practice association are making greater efforts for the development of transnational bankruptcy law.

With the increasing prevalence and frequency of transnational investment and trade activities, the status of transnational enterprises in various countries in the world and the interests involved have also become more complex. With the increasingly fierce market competition, various business mistakes, debt default and other situations, transnational bankruptcy cases are also increasing. Transnational insolvency law is one of the most complex issues in the field of private international law. According to the concept of private international law, the extraterritorial effect of law is the premise of conflict of laws. On the issue of private international law of transnational bankruptcy, there has always been a dispute between the theory of extraterritorial effect of bankruptcy between universal bankruptcyism and territorial bankruptcyism. The application of different theories of extraterritorial effect of bankruptcy will lead to completely different implementation effects of bankruptcy. Transnational bankruptcy law involves not only procedural issues such as jurisdiction, recognition and enforcement of foreign bankruptcy judgments, but also issues such as choice of law and application of law.

However, after reading the legislation of today's transnational bankruptcy laws, most of these countries set out from the principle of national sovereignty and build transnational bankruptcy laws on the basis of fully considering their own interests. Therefore, the international transnational bankruptcy cases have caused constant conflicts in judicial procedures. In view of this, from the perspective of transnational bankruptcy law system, this dissertation makes reasonable use of different research and comparison methods to make recommendations for transnational bankruptcy law.

[1] NEWSLETTERS. Chapter 15 Update: U.S. Bankruptcy Court Refuses to Enforce Order Approving Indonesian Debt Restructuring Plan Due to Third-Party Releases. Jones Day. July 2021.

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