A World Without Borders; A New World Order: Navigating Cross-Border Insolvencies Through Arbitration

Abstract

To date, multi-jurisdictional efforts aimed at managing cross-border insolvencies are largely limited to broad speaks of cooperation between national Courts. Absent is pointed attention to the incongruence in national insolvency laws at play. Without a single cross-jurisdictional forum with policing-like powers to navigate these differences, detours from the certainty, speed, and predictability that insolvency law serves have become a recurrence. This article posits realigning the goals of insolvency law in the context of cross-border insolvencies, by employing arbitration and mediation as lubricants to the difficult ‘choice of law’ and ‘choice of forum’ issues that present. The author proposes the construct of a specialized interstate dispute resolution centre that runs on a quasi-arbitration-mediation model and a set of ‘choice of law’ principles. This framework offers a path to resolve certain cross-border insolvency related disputes that carry a substantial transnational element. Most critically, the author advocates the value of a transnational integrated framework aimed at building consensus around ‘choice of law’ and ‘choice of forum’ issues. She believes this is key to realizing the goals of certainty and expeditious management of multinational commercial enterprises in financial distress.