INTRODUCTION

The title of this chapter is “Transnational Cooperation in Cross-Border Insolvency.” Cooperation, of course, is much broader than just the “recognition” or “enforcement” of judgments. Indeed, many forms of cooperation have developed, in addition to recognition and enforcement, both between administrators and, even, between courts. Also, it will be shown that in insolvency law “recognition” of a judgment means something different from the recognition of “ordinary” judgments.

Let me start with a few impressions from news headlines from the corporate world: “First Recognition of Chinese Insolvency in New York,” “Spanish Court Blocks David Guetta Arbitration under EIR,” or “Corporate Restructuring Summit in Dubai: Cross-Border Restructuring Saved Disgraced Abraaj’s Assets.” Similarly, the Delaware Bankruptcy Court recently recognized an Indian textile company’s bankruptcy case, in what counsel have called a vote of confidence in India’s new restructuring regime. An article appropriately entitled “The Epitome of a Cross-Border Restructuring” discusses the restructuring of Noble, a Bermuda-incorporated company, listed in Singapore, with a center of main interest (COMI) in Hong Kong. Clearly, since the second half of the twentieth century, the modern world has been characterized by the increasing economic interdependence of various states. This makes it more likely that the insolvency of a debtor has effects in more than one country. Possible examples range from a debtor having some property in a foreign country (e.g., a bank account) to big corporations with production plants and facilities worldwide. Responses to cross-border insolvency issues include uniform insolvency laws, uniform choice of law rules, and uniform recognition rules. Yet, the harmonization of substantive insolvency law is difficult, if not impossible, except for countries linked by a common legal tradition and close economic cooperation. In addition, states are reluctant to accept truly universal proceedings. States are jealous when dealing with insolvency cases due to political reasons and, accordingly, they are less willing to yield their sovereignty. Consequently, for the foreseeable future, we are likely to have different national laws and concurrent proceedings. In light of this, it makes sense to focus on the recognition and enforcement of “foreign proceedings” and the coordination and cooperation between concurrent proceedings.