破产或债务重整下的止诉禁令

分析出具止诉禁令的原因,探讨破产法院做出止诉禁令的权力与做法。在分析破产或债务重整所带来的争议的基础上,肯定联合国针对跨国境破产的示范法的重要意义,并剖析跨国境破产对国际仲裁的影响。     

亚太经济一体化背景下跨境破产的区域合作

《区域全面经济伙伴关系协定》的签署进一步推动亚太地区投资与贸易的自由化,跨境破产案件将逐渐增多,鉴于各国跨境破产国内立法发展不平衡的状况,形成区域合作多边机制是破解难题的有效路径。亚太自贸区跨境破产区域合作注重与国际规则对接的同时,应兼顾成员国法律传统与司法制度的特点,在区域内构建以承认与协助主要破产程序为中心的司法协助制度,厘清与界定外国破产程序和破产判决概念,明确主要破产程序的效力与管辖权确定标准,统一承认与协助外国破产程序的审查规则与程序规则,保证区域内跨境破产司法协助的确定性与可预见性。认同平行破产程序在现阶段解决跨境破产争议的合理性,在区域内推进形成主从程序协调机制。建立法院间交流与合作机制,促进跨境破产案件在区域内的高效审理。     

中越两国跨境经济合作区政策比较初探——以中越凭祥一同登跨境经济合作区为例

广西努力推进中越跨国经济合作区已经有几年时间了,但是遇到很多问题和困难,建设进展和效果远低于期望。其中的重要原因之一就是中越两国的跨境经济合作区政策的差异性,导致双方发展错位或者说发展不同步。因此,有必要比较两国的有关政策,通过克服这些差异,加快推进中越跨境经济合作区的步伐。     

Globalization,State Autonomy and the Fight against Cross-Border Crime: Greater China's Cooperation with the World

Although globalization has stimulated the rise in cross-border crime, it does not really undermine the autonomy of the mainland Chinese state, the Taiwan state, and the city-states of Hong Kong and Macao. Instead, through cooperation with law-enforcement agencies in other countries, the law-enforcement agencies of these four places, notably the police and customs, have ensured the persistence of state autonomy vis-à-vis cross-border criminal groups and individuals. In the case of Greater China (mainland China, Taiwan, Hong Kong and Macao), interstate cooperation involving the police and customs can maintain state autonomy vis-à-vis criminal groups and individuals. The mechanisms of such interstate and intergovernmental cooperation embrace the sharing of criminal intelligence, the occurrence of anti-crime joint operations, the holding of seminars and conferences, and the administrative arrangements of extraditions. In a nutshell, intergovernmental cooperation in the combat against cross-border crime can maintain state autonomy in the midst of globalization, as the case of Greater China shows.     

Voting rules in insolvency law: a simple-game theoretic approach

A chief characteristic of modern insolvency law in Canada, Germany, the UK, and the US is the provision for ‘workouts’ or ‘schemes of arrangement’ by which insolvent companies can attempt to rehabilitate the business. If reorganization is chosen, the debtor has to devise a plan of action which will be voted upon by claimants. The voting rules, however, differ in each jurisdiction to a greater or lesser extent and as yet have not been analyzed in any rigorous manner. This paper provides an approach based upon the theory of simple games to analyze the rules in terms of the ease which each of these regimes can pass (or hinder) plans and how these rules distribute value among claimants. We pay particular attention to the role of classification and the effect of coalition formation.     

Insolvency and employment protection: the mixed effects of the Acquired Rights Directive

The statutory protection provided by European Community law to employees during transfers of undertakings and other restructurings has been criticised on the grounds that it undermines insolvency procedures and interferes with the ‘rescue’ process. We present an analysis which suggests that granting employees rights of this kind may be an efficient means of recognising their firm-specific human capital. Case-study evidence is then presented to show that while in some situations employment rights may obstruct reorganisations, in others they allow employee interests to be factored into the bargaining process in such a way as to enhance the survival chances of enterprises undergoing restructuring. The law functions best when effective mechanisms of employee representation are in place and when the conditions under which employees’ acquired rights can be waived in the interests of preserving employment are clearly specified.     

Questioning Fundamentals: Leyland Daf and the 'Ownership' of Charged Property

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Retraction . Modern Law Review 67: 6, 1046‐1046 .
Online publication date: 1‐Oct‐2004. Although the House of Lords decision in Leyland Daf was primarily concerned with the order for distribution of assets in a winding‐up, it has several other far‐reaching ramifications and repercussions. The reasoning of their Lordships in the case alters our understanding of the very nature and operation of a charge over a company's assets. This reasoning strikes at the heart of the law of security interests, bringing into question the fundamental distinction between a charge and a mortgage. Furthermore the decision has given a whole new complexion to the concept of a floating charge which will have tremendous consequences for its application in commercial practice. This paper analyses the decision firstly on the basis of its legal principle and then on the basis of its policy considerations and concludes that its reasoning is neither sound nor justifiable on either ground.     

A Tale of Two Debtors: Responding to the Shock of Over‐Indebtedness in France and England – a Story from the Trente Piteuses

England and France have developed distinct treatment systems to address the shock of a substantial increase in over‐indebted individuals since the mid‐1980s. In France, Over‐Indebtedness Commissions, with the Bank of France playing a central role in their management, now dominate the system. A more fragmented system of private and public providers of remedies developed in England, with innovation driven by private actors modifying existing commercial procedures and increased access to bankruptcy relief a side‐effect of government promotion of entrepreneurialism. This article explains the differences between these countries in terms of the influence of interest groups, including state actors, and ideologies. Historical contingency also plays a role. The distinct responses were not hard‐wired to legal origins and the article argues that analysis of the interaction of interest groups, state actors and ideology in shaping institutions, which in turn structure future change, provides a productive approach for future comparative research in this area.     

跨境经济合作区的特征与法律和机制保障

跨境经济合作区是近年来兴起的一种新型的次区域经济一体化模式。这种经济合作模式,较之于传统的区域经济一体化形态,具有一些自身的特点：跨境经济合作区只覆相邻国家特定的毗连区域而非整个国家疆域;合作的主体是毗邻区域的地方政府而非中央政府;合作的内容以贸易和投资为核心,并可以根据需要扩展到交通、通讯、旅游、环境等领域。跨境经济合作区应建立在由上位、中位和下位三级法律基础上并有完善的机制作为保障。拟定的中越河口——老街、中老磨憨——莫丁、中缅瑞丽——木姐三个跨境经济合作区,仍处在建设的初期,其法律框架的形成和管理机制的建立任重道远。     

What Liquidation Does For Secured Creditors, And What It Does For You

This article analyses the liquidation process, challenging the much repeated proposition that secured claimants 'stand outside' liquidation. It is argued that this proposition (i) is a product of a misunderstanding of the dual duality in the nature of liquidation proceedings, in that, in principle, they serve both public and private functions, and they further the interests of both secured and unsecured creditors; (ii) overlooks how secured creditors benefit from liquidation, and also how unsecured creditors have a real interest in the proper administration of their debtor's encumbered assets; (iii) mistakes the secured creditor's choice in usually being able to gain immunity from the liquidation process, for a compulsion to stand exiled from this process; (iv) is incorrect as a matter of history and practice; and (v) is rendered unsustainable by the statutory text. It concludes that secured creditors have never 'stood outside' liquidation, that liquidation is an important tool for the protection of their interests, and that it is right to require floating charge holders to pay their fair share of liquidation expenses.