A Comparative Analysis on Cross-border Insolvency Legislation of Japan, Korea, China and UNCITRAL Model Law
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Divided jurisdictions under the national law system have yet to address legal issues in cross-border cases, including insolvency. UNCITRAL Model Law on Cross-border Insolvency is a solution for divided jurisdictions. More than 60 countries, including leading states in a global economy, have adopted the Model Law, of which key provisions are access, recognition, relief, and cooperation and coordination. The actual provisions of local legislation, however, are different from the Model Law, not to mention each other. In this article, the co-authors identify the differences in cross-border insolvency rules of Japan, Korea, China and the Model law. Analyzing the reason for those disparities, they find that adopting the Model Law is a type of legal transplantation, and those disparities are feedback to the Model Law. If the Model Law acknowledges and reflects them in its further amendments, another global rulemaking process will start. Co-authors conclude that the disparities are natural outcomes and do not mean the failure of the Model Law. In addition, they suggest that Japan, Korea, and China build leadership in a global rulemaking.
Abstract
Divided jurisdictions under the national law system have yet to address legal issues in cross-border cases, including insolvency. UNCITRAL Model Law on Cross-border Insolvency is a solution for divided jurisdictions. More than 60 countries, including leading states in a global economy, have adopted the Model Law, of which key provisions are access, recognition, relief, and cooperation and coordination. The actual provisions of local legislation, however, are different from the Model Law, not to mention each other. In this article, the co-authors identify the differences in cross-border insolvency rules of Japan, Korea, China and the Model law. Analyzing the reason for those disparities, they find that adopting the Model Law is a type of legal transplantation, and those disparities are feedback to the Model Law. If the Model Law acknowledges and reflects them in its further amendments, another global rulemaking process will start. Co-authors conclude that the disparities are natural outcomes and do not mean the failure of the Model Law. In addition, they suggest that Japan, Korea, and China build leadership in a global rulemaking.
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