Cross-Border Bankruptcy: Concept, Fundamentals of Legal Regulation, Law Enforcement Practice

УДК 343.01, ББК 67.408

Abstract

In the context of the internationalization of the economies of different countries, when the insolvent debtor and creditors have different nationalities, or the property of the insolvent debtor, which is being foreclosed on by creditors, is located in different countries, differences in national systems of legal regulation of insolvency are a serious obstacle to resolving issues related to the recognition of the debtor as bankrupt and satisfaction of creditors' claims. Attempts to unify the international legal regulation of cross-border insolvency relations, undertaken for a long time, have failed, which forces countries to look for other ways to resolve conflicts arising in the process of applying the norms of bankruptcy legislation of various legal systems.

The authors analyze the approaches to cross-border bankruptcies that have developed in the domestic legal order, including recent law enforcement practice. The issue of determining jurisdiction in the bankruptcy case of foreign legal entities in the Russian Federation is being investigated. Russian courts apply the concept of the center of the debtor's main interests not only to the cases of cross-border bankruptcy of foreign citizens, but also to foreign legal entities. The authors investigated the issue of determining jurisdiction in the bankruptcy case of foreign legal entities in the Russian Federation. It is proposed to clarify the traditional concept of cross-border bankruptcy as a relationship arising in the process of declaring a person bankrupt, complicated by a foreign element in the form of assets of a Russian debtor located on the territory of several countries or participation of foreign creditors in the bankruptcy of a Russian debtor, as well as bankruptcy of a foreign debtor whose main business and property are located in Russia or on the territory of several countries, the whole idea based on the principle of close contact with the country of applicable law.

The article examines such problematic aspects of cross-border insolvency as the definition of cross-border insolvency, the issues of determining primary and secondary jurisdictions, the possibility of parallel proceedings and the concept of a personified bankruptcy estate. The problem of challenging the debtor's transactions in the framework of cross-border bankruptcy is investigated, in particular, the issues of applicable legislation and the ratio of the sphere of invalidity of transactions and the sphere of bankruptcy. The conclusion is made about the need to transform the doctrine and institutions of cross-border insolvency.