The interrelationship of private international law principles and international corporate insolvency

© 2002 Dr. Judith May WadeThe search for the appropriate manner to conduct cross border insolvency administrations has continued for many years and taken many forms. Clearly these administrations involve assets, rights and creditors dispersed among jurisdictions with nations having no unilateral authority to administer aspects of the insolvency not located in their jurisdiction. My thesis initially outlines and reviews this search for the manner in which these administrations should be conducted explaining the theoretical approaches proposed as to the manner in which these administrations should be conducted and isolates the theory reflected in these current proposals. The conclusion drawn from this review is that generally a universalist approach is preferred, being a stance of co-operation with foreign administrations. This thesis tests this 'co-operative approach' by way of the international instruments proposed, the characterisation process presently utilised in determining the law governing rights/assets involved in these administrations and the trends evident in the most recent developments in this area i.e. the writings of the theorists, recent domestic legislative enactments and international solutions proposed. The Australian approach is accorded particular focus in this examination to both ascertain the approach it adopts and the solution it would be disposed to in any international solution. This examination reveals that despite all the work undertaken in this search for the appropriate manner in which to conduct these administrations, in reality despite an ostensibly universalist stance predominance is accorded to the protection of domestic and other commercial interests over any real co-operation being achieved. This thesis argues once insolvency intervenes it is appropriate for all rights to be determined in an insolvency context and details the factors making such characterisation appropriate. The final chapter of this thesis discusses how the present situation can move on to a more international solution. Building on the commonalities evident in the international instruments proposed, this thesis proposes the appropriate manner to conduct these administrations. This thesis then determines the manner in which this international solution should be implemented and discusses why in Australia's case the CA is not the appropriate vehicle to utilise for same