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dc.contributor.advisorStander, A.L.
dc.contributor.authorWeideman, Jeanetteen_US
dc.date.accessioned2012-08-20T14:16:15Z
dc.date.available2012-08-20T14:16:15Z
dc.date.issued2011en_US
dc.identifier.urihttp://hdl.handle.net/10394/6956
dc.descriptionThesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.
dc.description.abstractAn increase in economic globalisation and international trade the past two decades has amounted to an increase in the number of multinational enterprises that conduct business, own assets and have debt in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross–border insolvency (CBI). CBI refers to the situation where insolvency proceedings are initiated in one jurisdiction with regard to a debtor’s estate and the debtor also has property, debt or both in at least one other jurisdiction. When a multinational enterprise is in financial distress, the structure of such an enterprise poses significant challenges to the question of how to address its insolvency. This is due to the fact that, although the multinational enterprise is found globally in different jurisdictions around the world, the laws addressing its liquidation are local. The possibility of restructuring the multinational enterprise or liquidating it in order the satisfy creditor claims optimally depends greatly upon the ease with which the insolvency law regimes of multiple jurisdictions can facilitate a fair and timely resolution to the financial distress of that multinational enterprise. The legal response to this problem has produced two important international instruments which were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross–Border Insolvency in 1997, which has been adopted by nineteen countries including the United States of America (in the form of Chapter 15 of the US Bankruptcy Code) and South Africa (in the form of the Cross–Border Insolvency Act 42 of 2000). Secondly, the European Union adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. These two instruments address the management of general default by a debtor and are aimed at providing a legal framework which seeks to enhance legal certainty, cooperation, coordination and harmonization between states in CBI matters throughout the world. After discussing the viewpoints of various writers, it seems clear that “modified universalism” is the correct approach towards CBI matters globally. This is mainly due to the fact that the main international instruments currently dealing with CBI matters are all based upon “modified universalism”. By looking at various EU and US case law it is also evident that, although there is currently still no established test for the determination of the “centre of main interest” (COMI) of a debtor–company under Chapter 15, there is a difference in the approach adopted by courts in the EU and those in the US in this regard. This dissertation further discusses the requirements for a debtor–company to possess an “establishment” for the purpose of opening foreign non–main insolvency proceedings in a jurisdiction as well as the choice–of–law considerations in CBI matters.en_US
dc.publisherNorth-West University
dc.subjectInsolvencyen_US
dc.subjectCross-border insolvencyen_US
dc.subjectUNCITRAL Model Law on Cross-Border Insolvencyen_US
dc.subjectChapter 15 of the US Bankruptcy Codeen_US
dc.subjectEuropean Council Regulation on Insolvency Proceedingsen_US
dc.subjectCentre of main interest (COMI)en_US
dc.subjectEstablishmenten_US
dc.subjectMultinational enterprisesen_US
dc.subjectChoice of lawen_US
dc.subjectInsolvensieen_US
dc.subjectOorgrensinsolvensieen_US
dc.subjectHoofstuk 15 van die US Bankruptcy Codeen_US
dc.subjectSentrum van hoofbelangen_US
dc.subjectBelangen_US
dc.subjectMultinasionale ondernemingsen_US
dc.subjectKeuse van reg by insolvensiesen_US
dc.titleEuropean and American perspectives on the choice of law regarding cross–border insolvencies of multinational corporationsen
dc.typeThesisen_US
dc.description.thesistypeMastersen_US


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