Abstract
As the globalization of economy accelerates greatly, more and more cross-border trade and investment is inevitably coming into being, resulting in many bankruptcy cases in which the relationship of creditor's rights and debts is no longer limited to the territory of a country. In recent years, the most influential case is the bankruptcy case of Hanjin Shipping. Hanjin Shipping’s bankruptcy has had a great impact on the international shipping market, the global supply chain has been interrupted, and a large number of commercial disputes have been triggered. The problems of insolvency international cooperation and the conflicts between bankruptcy and ship arrest proceedings in cross-border insolvency case have aroused widespread concern of experts and scholars in shipping. China has not adopted “UNCITRAL Model Law on Cross-border Insolvency”, making the case more complicated to deal with the proceedings under jurisdiction of China. In order to deal with cross-border bankruptcy cases in China and better protect the interests of stakeholders, this paper makes a detailed analysis of the legal provisions on cross-border bankruptcy under Chinese law, and statistically analyzes the practice of Chinese courts in dealing with cross-border bankruptcy cases. Through a comparative analysis of the similarities and differences of legal provisions and practices between China and “UNCITRAL Model Law on Cross-border Insolvency” and other typical countries, this paper puts forward some suggestions and countermeasures to deal with similar cross-border bankruptcy cases under the jurisdiction of Chinese courts in the future.
Highlights
On August 31, 2016, Hanjin Shipping Co., Ltd.(Hanjin hereafter), the world's top 10 shipping giant, filed bankruptcy protection to the Central District Court in Seoul, South Korea, and on September 1, the court judged the acceptance of its application
As the globalization of the world economy accelerated greatly in the 1980s, under the background of cross-border trade and investment, the cross-border actions inevitably lead to the cross-border of property relations, resulting in many bankruptcy cases in which the relationship of creditor's rights and debts is no longer limited to the territory of a country
Some experts support that all the five types of claims secured by admiralty lien should be ranked over possessory lien and ship mortgage in the distribution of a debtor’s assets16, while some are of the opinion that admiralty lien is not necessary to be taken into consideration after the insolvency proceeding has been commenced, as type (a), (b), (c) of admiralty lien have been categorized as claims over ordinary claims by their nature, pursuant to the the article 113 of the Bankruptcy Law, type (d) and (e) should be treated as ordinary claims
Summary
On August 31, 2016, Hanjin Shipping Co., Ltd.(Hanjin hereafter), the world's top 10 shipping giant, filed bankruptcy protection to the Central District Court in Seoul, South Korea, and on September 1, the court judged the acceptance of its application. As the globalization of the world economy accelerated greatly in the 1980s, under the background of cross-border trade and investment, the cross-border actions inevitably lead to the cross-border of property relations, resulting in many bankruptcy cases in which the relationship of creditor's rights and debts is no longer limited to the territory of a country Such bankruptcy is called "cross-border insolvency" for its foreign element. Notwithstanding the fact that the Model Law implies the development and trend on international cooperation, China, as one of the major economics and shipping countries, has not enacted the Model Law, and not make any operational mechanism in line with the same This situation makes practice of cooperation complicated on cross-border insolvency under the jurisdiction of China.
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