The development of global trade has led to the emergence of cross-border insolvency, where the debtor’s assets are scattered in several countries and create legal challenges for curators in executing bankruptcy estates. Indonesia, which still adheres to the territoriality principle under Law Number 37 of 2004, faces significant barriers in recognizing and enforcing foreign bankruptcy decisions, resulting in ineffective cross-jurisdictional asset resolution and losses for creditors. This research employs a normative juridical method and a comparative approach by examining the implementation of the UNCITRAL Model Law on Cross-Border Insolvency in South Korea. The findings show that legal harmonization through the adoption of the Model Law can strengthen the curator’s authority in executing assets across jurisdictions, as well as enhance legal certainty and creditor protection. It is recommended that Indonesia undertake bankruptcy law reform by adopting the principles of the UNCITRAL Model Law as an effort to modernize its national insolvency regime in response to global trade dynamics.

When Justice Meets Commerce: Unraveling the Mysteries of Foreign Arbitral Awards in India’s Cross-Border Insolvency Arena

When Justice Meets Commerce: Unraveling the Mysteries of Foreign Arbitral Awards in India’s Cross-Border Insolvency Arena

Cross-border Insolvency Cooperation Agreements – Elements for a Contract Theory of Joint Jurisdiction

The rapid expansion of globalization has significantly increased cross-border economic activities, intensifying legal complexities in insolvency cases involving multinational entities. In Indonesia, Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment Obligations governs domestic insolvency but lacks explicit provisions addressing cross-border insolvency. This regulatory gap exposes Indonesian creditors to heightened legal uncertainty and potential financial losses, particularly when debtor assets are located abroad and foreign ‎proceedings are not recognized domestically.‎ This paper critically examines the extent of legal protection afforded to Indonesian creditors in cross-border insolvency scenarios. ‎It evaluates the relevance and potential adoption of the UNCITRAL Model Law on Cross-Border Insolvency as a framework for reform. ‎Through a comparative analysis of Indonesia’s legal regime with that of Singapore and the Philippines, both of which have adopted the ‎Model Law. The study underscores the benefits of harmonized international insolvency procedures. Findings reveal that Indonesia’s current ‎reliance on reciprocity and ad hoc recognition mechanisms undermines predictability, judicial cooperation, and creditor confidence.‎ The study concludes by advocating for Indonesia’s adoption of the UNCITRAL Model Law to align its insolvency framework ‎with global standards. Such a reform would improve cross-border asset recovery, enhance creditor protection, and foster a more stable and ‎attractive investment environment‎.

After 25 years, the European Union can boast of having harmonised EU cross-border insolvencies in a Regulation (recasted once). The EU is presently addressing substantive harmonisation of insolvency law (via Directives) within the Union with a focus on restructuring and stakeholders’ interests. Although such legislation should apply without prejudice to the EU Insolvency Regulation, this approach is somewhat difficult to articulate since that Regulation was drafted with a focus on liquidation and maximising creditors’ protection. This tension is particularly acute in relation to transaction avoidance actions as the Regulation sets a double avoidance requirement while the proposed Directive fosters a more pro-avoidance position. This paper suggests several options that the EU legislature may follow to revise the Regulation’s transaction avoidance rule. It is contended that such revision needs to bear in mind how the issue is being addressed outside the EU in order to consider the ad extra regulation of said actions.

This article analyses the insolvency regulation of multinational corporate groups in Colombia, revealing a persistent adherence to a traditional legal approach that conceives of them as unitary entities despite their pluri-subjective and pluri-ordinate structure. However, increasing economic globalization poses significant challenges to this model, given the inherent complexity of these cross-border corporate structures in complex situations such as insolvency. The fundamental purpose of this reflection is, therefore, to examine the pressing need for a revision of Colombian domestic regulations concerning the treatment of insolvent multinational corporate groups. Through an analysis based on methodological sources such as law, doctrine and jurisprudence, the aim is to propose a critical reflection on the approach to this organizational form in the Colombian legal system. This reflection will be developed within the framework of international standards and specialized doctrine on cross-border insolvency of business groups, with the aim of identifying the existing regulatory deficiencies in the field of hard law and highlighting the urgency of updating them in the light of international insolvency law and contemporary soft law instruments, contrasting them with domestic provisions relating to groups. In order to address this problem, a legal-functional analysis structured in three phases is proposed: (1) definition and delimitation of the concept of multinational corporate group, (2) review of relevant theoretical models on the subject, and (3) critical examination of the applicable Colombian legislation. This methodological approach will make it possible to analyze the current legal framework and formulate recommendations to optimize the management of the cross-border insolvency of the multinational corporate group in Colombia to strengthen the protection of creditors, the debtor and why not in the future create and develop a cross-border insolvency market in this country.

The relevance of studying the legal framework for cross-border insolvency is significantly increasing amid contemporary transformations and global trends. In particular, the recent ruling by the Supreme Court of the Russian Federation on the possibility of bankrupting foreign legal entities within Russian jurisdiction has revived the debate on the need for specialized legal regulation of such cross-border disputes. This necessitates identifying the optimal approach to harmonizing key aspects of cross-border insolvency regulation in Russia, taking into account modern challenges and international developments. The core scientific issue addressed in this research is whether it is more appropriate to develop a specialized multilateral international treaty or to revise the current approach of creating a separate national legislative framework. The author conducts a comparative analysis of regulatory frameworks and practices concerning the recognition of foreign insolvency proceedings, drawing on the experiences of foreign jurisdictions and the Russian Federation. This analysis identifies both commonalities and divergences in cross-border insolvency regulation across different countries, comparing these findings with the prerequisites for establishing a comprehensive legal model for cross-border insolvency in Russia. Based on the comparative analysis, the study concludes that developing a specialized multilateral international agreement governing the recognition and enforcement of foreign insolvency judgments would be the most effective solution.

The development of bankruptcy and PKPU law in Indonesia demonstrates the complexity in regulating creditors' rights, particularly foreign creditors holding cessie (assignment of claims). Cessie transactions often involve cross-border elements, which complicate debt settlement for debtors undergoing PKPU or bankruptcy proceedings. Several cases, such as PT Visi Media Asia Tbk (VIVA) suing foreign creditors, highlight challenges related to the recognition of foreign creditors' rights in PKPU processes. Furthermore, Indonesian legal provisions, such as restrictions on foreign ownership of land, exacerbate the recognition of foreign creditors in the assignment of receivables. The author defines two key research questions: First, the position of foreign creditors holding cessie in the PKPU and bankruptcy processes in Indonesia, in relation to the principle of state sovereignty in regulating debt payment obligations involving foreign parties; and second, whether the existing regulations in Indonesia's PKPU and bankruptcy processes concerning cessie holders can provide legal certainty and fairness for foreign creditors. This study employs a normative legal research approach, in which the author examines relevant legal concepts and regulations, and analyzes books, journals, and other necessary documents. The research findings and conclusions indicate that within Indonesia’s legal system, bankruptcy and PKPU are mechanisms designed to settle debtors' debts fairly and proportionally, under the supervision of judges and curators. Cessie, as the transfer of claims between creditors, plays an important role in this process, even though it is not explicitly regulated in the Bankruptcy and PKPU Law. While the assignment of receivables can be carried out without the debtor's consent, it still affects the debtor's obligations and the creditors' rights. Moreover, the involvement of foreign creditors in PKPU and bankruptcy processes presents challenges, especially regarding cross-border insolvency and international legal recognition. Therefore, Indonesia needs to clarify legal mechanisms that accommodate the rights of foreign creditors, ensure equal protection for both domestic and foreign creditors, and avoid legal uncertainty through the harmonization of national regulations with international law.

Cross-border insolvency involves complex legal challenges that arise when a debtor's assets and liabilities span multiple jurisdictions. The lack of a comprehensive law to deal with such beyond-borders disputes in insolvency can have an undesirable impact on the enterprise, local or foreign creditors, recognition of law or jurisdictions, enforcement of foreign decisions, and many more. In the global context, the United Nations has adopted the Model Law on Cross-Border Insolvency (MLCBI) which has been implemented by various nations like, the United States, the United Kingdom, the Republic of Korea, Japan, Poland, etc. in their domestic laws to create uniformity in administering cross-border insolvency proceedings. This is a guiding document to resolve the legal complexities in cross-border insolvency to the adoptive countries, such as, conflict of laws, determination of assets of debtors, determination of main proceedings, relief provisions and many more. In India, Cross-Border Insolvency proceedings are initiated under the Insolvency and Bankruptcy Code (IBC), 2016. This paper highlights the MLCBI from an Indian Perspective with reference to the IBC, as India’s regulatory framework for cross-border insolvency. Additionally, the paper examines the paradigm shift after the implementation of this MLCBI in the Indian Insolvency Framework in the IBC concerning the proceedings in resolving such international insolvency cases in India. This paper will contribute to how countries like the other countries that have implemented the MLCBI in their legal realm while handling such transnational insolvency disputes.

This study examines the timing of foreign insolvency filings in five jurisdictions: the United States of America, Australia, the European Union, the United Kingdom, and Singapore, which collectively experience a significant volume of cases worldwide. The current United Nations Commission on International Trade Law (UNCITRAL) Cross-Border Insolvency (CBI) law, established under the UNCITRAL, does not adequately implement the timing protocol under the determination of the Centre of Main Interests (COMI). The study addresses inconsistencies in applying the timing protocol, focusing on its uniformity, recognition standards, and relief measures through comparative analysis.

The article is based on a legal analysis of the regulations governing international cooperation in the field of insolvency (bankruptcy). Conflicts between national and international legal systems determine the complexity in solving such significant issues as the competence of courts in cases of cross-border bankruptcy, as the law to be applied to relations related to cross-border bankruptcy, as the procedure and grounds for recognizing and executing judicial acts of foreign bankruptcy courts, as well as the need for international cooperation between States. The content of the foreign element as a crucial component of the concept of cross-border insolvency is disclosed. The analysis of the normative provisions of international acts and acts of the legislation of the Russian Federation regulating issues of international cooperation in the field of insolvency (bankruptcy) is carried out. A general description is given of the UNISTRAL Model Law on Cross-Border Insolvency of 1997 in force in the territory of the European Community, Regulation of the European Parliament and of the Council of the European Union 2015/848 of May 20, 2015. (new edition), the Model Law on the Insolvency of Business Groups of 2019 adopted by the United Nations Commission on International Trade Law (UNCITRAL), etc. The features of the provisions of the European Convention on Certain International Aspects of Bankruptcy of 1990, the Convention of the European Union on Cross-Border Insolvency of 1995, which have not entered into force, are considered. The absence of a detailed mechanism of legal regulation of cross-border insolvency in the domestic legal system is shown. Based on examples of judicial practice, it is determined that national legislation, when deciding on the jurisdiction of a case involving foreign organizations, international organizations, foreign citizens, stateless persons engaged in entrepreneurial and other economic activities, establishes the priority of the competence of national courts in the event of a close connection of the disputed legal relationship with the territory of the Russian Federation. The special role of domestic judicial practice in the development of legal regulation and law enforcement in the field of cross-border insolvency is noted.

Reflections on Cross-border Insolvency under RCEP and China's Regional Legal Cooperation

Abstract This article is written in response to the author’s involvement with cross-border insolvency and international arbitration. It provides a review of the principles that inform each of these processes and considers the application of modified universalism. It explores the effects of an insolvency process on considerations of arbitrability and jurisdiction and conducts a comparative analysis of specific jurisdictions’ insolvency laws. It suggests that the question of whether a tribunal ought to stay an arbitration proceeding is nuanced, requiring careful analysis. There are risks where a party enters into an insolvency process, and a tribunal refuses to stay proceedings, that an arbitral award may likely be refused to be recognized and enforced under the public policy exception of the New York Convention. These issues will continue until a Convention on the Recognition and Enforcement of Cross-Border Insolvency Matters is entered into by States.

The Insolvency and Bankruptcy Code (IBC) has been a landmark reform in India’s insolvency framework, aiming to streamline corporate distress resolution and promote a creditor-friendly approach. However, despite its achievements, the IBC is not without significant challenges. This paper critically examines the grave issues and loopholes in the Code, focusing on two major concerns: delays in the resolution process and suboptimal recovery rates for creditors. It explores the root causes of these issues, including overburdened tribunals, procedural inefficiencies, and misinterpretation of legal provisions. Furthermore, the paper highlights related challenges such as the misuse of provisions, valuation disputes, and the lack of a comprehensive cross-border insolvency framework. By analysing these structural and procedural gaps, the study provides recommendations to strengthen the IBC and enhance its effectiveness in resolving financial distress while ensuring equitable stakeholder outcomes.

This article analyzes the doctrine regarding the origin and evolution of the rule stating that the existence of an international treaty is a prerequisite for the recognition of cross-border insolvency. The study examines international legal doctrine, relevant treaties concluded by the Republic of Moldova, and applicable judicial practice. It also proposes an interpretation of the concept of "civil judgment" in relation to cross-border insolvency issues, considering international regulations and national legislation. The article further addresses the economic and social implications of recognizing cross-border bankruptcies, as well as reform perspectives in this field.

Abstract This article critically examines s426 Insolvency Act 1986 and its position in the UK’s Cross Border insolvency firmament. It traces the origins of s426 to a recommendation of the 1982 Cork Committee and notes that it replaced s122 Bankruptcy Act 1914 while giving the substantive provisions a more contemporary feel and modern gloss. The article notes limitations on the operation of s426 in that it only applies to cooperation between courts and then only courts in designated countries and territories. Nevertheless, s426 is potentially wider than the UK Uncitral Model Law implementation provisions. S426 enables the UK court to apply the provisions of foreign insolvency law in responding to a request from a foreign court. In the UK the Uncitral Model Law provisions have been construed as not having this effect.

This article is devoted to one of the most complex and little-studied aspects of international private law, a special group of norms that are not subject to the general principles and rules for choosing the applicable law and act as both a “protective” and “blocking” mechanism with respect to the influence of the competent legal order — the public order clause. This article is of particular interest in connection with the author’s attempt to present a qualitatively new view on the role and essence of this mechanism, the study of the features of the application of the public order clause within the framework of this study is aimed, first of all, at presenting a real picture of the formation of this phenomenon not exclusively as a mechanism of positive law, but as a response to the needs of society and the state in protecting the unshakable foundations of life and joint activities of a particular national community. In addition, the author is convinced that in its historical development, public order has overcome several transformations and in the context of the tendency to expand the field of private law relations, which are significantly influenced by the clause on public order, the exit of this mechanism beyond the exclusive contractual legal relations, it is necessary to assert the possible transformation and refraction of the traditional private law institution under the influence of a specific sphere of legal relations, as an example, the author refers to the sphere of cross-border insolvency.

The need to determine the applicable law and the competence of courts makes challenging transactions one of the most complicated aspects of cross-border insolvency. In search of the optimal model of regulation of this issue in Russia, it is useful to study the legal framework and law enforcement practice in foreign legal orders. The study concludes that there are a number of common features in European and American legislation on cross-border insolvency, which is explained by the implementation of the provisions of the UNCITRAL Model Law in the legal acts of individual countries and interstate associations. The analysis of Russian law enforcement practice demonstrates that in the absence of proper regulation, Russian courts also rely on the principles and concepts established in international practice when considering cases on challenging transactions in cross-border bankruptcies. This, however, does not negate the need to create a regulatory and legal framework for cross-border insolvency at the national level in order to increase legal certainty and establish a more uniform judicial practice. In the process of development of the relevant legislation it is necessary to take into account the relevant experience of foreign legal orders.

The liability of personal guarantors under India’s insolvency regime has undergone a significant transformation with the introduction of insolvency provisions under the Insolvency and Bankruptcy Code, 2016 (IBC). This research critically examines the evolving legal framework governing personal guarantors, analysing recent judicial pronouncements and legislative changes that have redefined their rights and obligations in relation to corporate debtors and creditors. The study explores how including personal guarantors in the insolvency process has streamlined creditor recoveries while providing structured financial resolution mechanisms for guarantors. Additionally, the paper assesses the cross-border insolvency framework, comparing India's approach with international insolvency regimes, particularly in the context of harmonisation efforts and global best practices. Through a doctrinal research methodology incorporating statutory analysis, judicial interpretations, and comparative legal studies, the research identifies key challenges, including due process concerns, enforcement inefficiencies, and complexities in cross-border insolvency cases. The findings indicate that while the evolving insolvency framework enhances creditor protection and financial recovery, it raises concerns regarding fairness and procedural safeguards for personal guarantors. The paper advocates for a balanced approach to insolvency laws, calling for targeted reforms to address enforcement gaps and ensure equitable treatment for all stakeholders. By analysing domestic and international perspectives, this study contributes to the discourse on personal guarantor insolvency and offers recommendations to enhance the efficacy and fairness of the resolution process.