Cross-border bankruptcy

Transboundary bankruptcy (eng. - transnational insolvency ; German - die transnationale Insolvenz ) is a bankruptcy complicated by a foreign element. The foreign element may be that there are, for example, a foreign (e) creditor (s), a foreign (e) debtor (s); the property of the debtor, which is levied, is in several states; Claim rights have arisen in the foreign state (s), etc. ^[1]

In developed foreign countries, there is no unity of views on the issue of attributing cross-border bankruptcy to a particular branch of law. In Germany , England and France , for example, it is considered that this is a sphere of private international law, in the Netherlands it is not ^[2] . In the Russian course of the MCh, these questions are considered in detail by L. P. Anufrieva and some other authors (V. V. Stepanov ^{[3] [4]} , S. S. Trushnikov ^[5] ). According to L.P. Anufrieva, cross-border bankruptcy is a special area that has both substantive and procedural features, which makes it a sui generis area of ​​regulation ^[6] .

The complexity of cross-border bankruptcy lies in the fact that each state has its own national rules governing bankruptcy. For example, various legal systems relate differently to protecting the interests of creditors, defining the rights of managers and, in general, the tasks of legal regulation of social relations arising in bankruptcies. So, in England, compared to other countries, creditors are more protected ^{[7] [8]} ; the American model is less liberal to creditors and combines the protection of the interests of the debtor with remedial purposes ^{[8] [9]} ; in France, the main task is the rehabilitation of enterprises, even to the detriment of creditors ^{[9] [10]} .

In transboundary bankruptcy, two basic principles can be distinguished, the adherence to which respectively divides all states into two systems: using either the principle of "universality" (England, France, Germany) or the principle of "territoriality" (Holland) ^{[11] [12]} . However, none of these systems is applied in practice in its pure form (limited or modified universalism or territoriality is often used).

The principle of "universality" is that if there is a cross-border bankruptcy, initiation of bankruptcy in one country will have legal effect in any other country following the principle of "universality" ^[13] . The system, built on the "territorial" principle, based on its name, puts at the forefront the limitations of bankruptcy procedures instituted in one state, within its territory ^[14] .

An important issue is the regulation of cross-border bankruptcy. At present, there is no general universal international instrument regulating cross-border bankruptcy. However, there are several regional conventions, as well as the national legislation of a state.

The sources of legal regulation of cross-border bankruptcy in the European Union include the EU Regulation “On Insolvency Procedures” No. 1346/2000 and the national legislation of the Member States of the European Union.

The sources of legal regulation of cross-border bankruptcy in the CIS include: the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters ^[15] ; Agreement on the resolution of disputes related to the implementation of economic activities ^[16] ; Agreement on the procedure for the mutual execution of decisions of arbitration, economic and economic courts in the territories of the States members of the Commonwealth ^[17] ; Model CIS law on insolvency ^[18] ; national legislation of the CIS countries (for example, in Russia - the Federal Law on Insolvency ^[19] , a draft law on cross-border insolvency ^[20] ).

Other sources include: the European Convention on Certain International Aspects of Bankruptcy ^[21] ; Code of Private International Law ^[22] ; Scandinavian Bankruptcy Convention ^[23] ; Treaty on International Commercial Law ^[24] ; Treaty on International Commercial Law ^[25] ; Treaty on International Procedure Law ^[26] ; UNIDROIT Convention ^[27] ; bilateral treaties on legal assistance.

Among the recommended acts are the following: Model Law on Cross-Border Insolvency ^[28] ; Legislative Guide on Insolvency Law ^[29] ; UNCITRAL Practical Guide ^[30] ; The Unified Statement of the ОХАДА “On the organization of collective liquidation procedures” ^[31] ; Principles of cooperation in bankruptcy cases between NAFTA countries ^[32]