Original scientific paper
Issues of Legal Transplants in Bankruptcy Law: Collision of Legal Traditions and Economic Factors
Ivana Tomas Žiković
; Ekonomski fakultet Sveučilišta u Rijeci
Dejan Bodul
; Pravni fakultet Sveučilišta u Rijeci
Nataša Tomas
; korporativni pravnik
Abstract
Due to the globalization of markets, modernization of bankruptcy proceedings is particularly important. Various international institutions such as World Bank, UNCITRAL, the IMF and the American Law Institute have focused on this issue and publish guidelines to promote the harmonization of bankruptcy and legal regulations. The starting point for the new Insolvency / Bankruptcy legislation of selected countries (Czech Republic, Slovakia, Polish, Slovenian and Croatian) was the German Insolvency Law (Insolvenzordnung) from 1994 (vacatio legis to 1999) which itself is significantly altered German insolvency legislation. The features of new laws in selected post transition countries are now largely in accordance with modern world solutions. However, in implementation of bankruptcy legislation selected countries are facing similar problems. Last amendments of Insolvency Law in selected countries go towards functionalization of bankruptcy law protection, by reducing the burden on the courts and introducing informal extrajudicial (bankruptcy) procedures. However, the analysis indicated that formal bankruptcy proceedings have not fulfilled their purpose. As such, proceedings were mostly conducted without restructuring plan or it took several years from initiating the proceedings until adoption of restructuring plan. Until recently, implementation of Insolvency / Bankruptcy legislation of selected countries led to the liquidation of the legal entity i.e. liquidation bankruptcy. Bankruptcy Law reforms in Germany and other developed European countries, inspired by the Chapter 11 of the US Bankruptcy Code, started favouring the restructuring and survival of the distressed companies. Authors emphasized that the foreign bankruptcy legislation cannot be easily mixed or directly transplanted in order to create a "new" law. They point out the necessity of clear orientation based on one particular law since the unification of individual, well-resolved institutes from different legal systems into the new law, often results with inconsistencies and ambiguities. Such "clear" technical approach is considered particularly important in Croatia since it has short time period and scarce resources. In this manner, it is possible to use foreign case law and literature in solving problems that arise from transplanting foreign legal solutions.
This work has been supported by the Croatian science foundation under the project number 6558 "Business and Personal Insolvency - the Ways to Overcome Excessive Indebtedness"
Keywords
Insolvency / Bankruptcy law; Legal transplants; Guidelines for Croatia
Hrčak ID:
131262
URI
Publication date:
22.12.2014.
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