Original scientific paper

The UNCITRAL Model Law on cross-border insolvency

Jasnica Garašić

Abstract

The presented and analyzed regulations from the UNICTRAL Model Law on cross-border insolvency show that it has been inspired to a large extent by solutions and ways of legal thinking characteristic of the Anglo-American legal system, although its authors are not willing to admit it.
I believe that many regulations of the Model Law have been formulated too widely, so that they lack precision, which is pointed to in the article. This is especially true of the powers given to state courts in defining measures to protect the insolvency estate and regulating the consequences of acknowledging insolvency proceedings abroad, which are too wide and insufficiently well-defined. This can result in legal unpredictability which calls into question legal security. The Model Law outlines in general terms the admission of insolvency proceedings and does not elaborate the prerequisites for admission in keeping with possibly different kinds of decisions, which can be the object of admission in international insolvency law. The Model Law has correctly opted for a special formal admission procedure, but a number of procedural law issues have not been regulated. The question of direct and indirect international authority to initiate negative, special insolvency proceedings, is inadequate. One of the greatest shortcomings of the Model Law is the fact that it has not resolved systematically the issue of the law applicable to legal consequences of admission of insolvency proceedings abroad. The clauses on direct cooperation between courts and insolvency proceedings commissioners which are carried out in different states against the same debtor are of the utmost importance, since the promptness of proceedings is of a crucial importance for the protection of the insolvency estate.
It follows that states based on continental European legal systems should be very cautious in adopting the regulations of the Model Law. If they want to have modern autonomous international insolvency law, they will have to modify a large number of regulations from the Model Law, and even leave out some of them; a number of regulations, especially those regarding conflict of laws, will have to be added to the text of the law.
It should be said, however, that the UNCITRAL Model Law on cross-border insolvency deserves acknowledgement for its aspiration to encourage countries around the world to regulate and modernize autonomous international insolvency law, and for contributing to further discussions on the most adequate solutions in international insolvency law.

Keywords

insolvency proceeding; bankruptcy proceeding; main insolvency proceeding; negative or special insolvency proceeding; particular insolvency proceeding; secondary insolvency proceeding; admission of insolvency proceedings abroad; cooperation in cases of cro

Hrčak ID:

6462

URI

https://hrcak.srce.hr/6462

Publication date:

5.12.2006.

Article data in other languages: croatian german

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