Journal article
ARBITRAL CONTRACTUALISM IN TRANSNATIONAL BANKRUPTCY
Southwestern University Law Review, Vol.35, pp.327-603
01/01/2006
Abstract
I. Introduction "Business failure has gone international. The financial distress of a firm is no longer confined to territorial borders." 1 The rise of the global market phenomenon has naturally brought with it the rise of the multinational corporation. 2 These corporations with assets, partners, business activities, subsidiaries, and parents in a multitude of nations are by now the predominant vehicle for international commerce and investment. 3 Though the corporation's reach has extended beyond the purely domestic sphere, threats of insolvency and transnational bankruptcy continue to loom around the corner. Jay Lawrence Westbrook defines transnational bankruptcy as "the management of the general financial default of a multinational enterprise." 4 Transnational bankruptcy, however, suffers from a difficulty that domestic bankruptcy does not face: there are many different and conflicting laws which, by virtue of the corporation's existence in multiple nations, could apply both substantively and procedurally. 5 Somehow, though, some court or courts must create the estate and either reorganize or liquidate the corporation to pay its creditors. Which court should do this? What precisely is the estate? Who are the creditors? What priorities are to be assigned? Which law should govern? In transnational bankruptcies, the parties disagree on the answers to these questions. 6 There is no clear international norm governing the answers. Even less clear is which international legal system is best. The uncertainty as to which law is applicable to transnational bankruptcies, while a problem in itself, gives creditors and debtors alike the opportunity and incentive to shop ...
Details
- Title: Subtitle
- ARBITRAL CONTRACTUALISM IN TRANSNATIONAL BANKRUPTCY
- Creators
- Mihailis E. Diamantis
- Resource Type
- Journal article
- Publication Details
- Southwestern University Law Review, Vol.35, pp.327-603
- Publisher
- Southwestern University School of Law Southwestern University Law Review
- ISSN
- 0886-3296
- Language
- English
- Date published
- 01/01/2006
- Academic Unit
- Law Faculty; Philosophy
- Record Identifier
- 9984398461802771
Metrics
2 Record Views