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Tinjauan Hukum Penerapan Hak Mendahulu Utang Pajak Dalam Perkara Kepailitan Pt Industries Badja Garuda Berdasarkan Undang-Undang Nomor 37 Tahun 2004 Tentang Kepailitan Dan Penundaan Kewajiban Pembayaran Utang, Siti Fatimah Citra Nurislamiati

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This paper discusses the application of pre-emptive rights over tax debt collection in bankruptcy disputes regulated in Article 41 paragraph (3) of Law Number 37 of 2004 concerning the Bankruptcy and Deferral of Debt Payment Obligations displayed by the Directorate General of Taxes. Tax debts outside the bankruptcy process for compulsory taxes are being filed for bankruptcy by requesting the Commercial Court to return all tax liabilities that would harm the interests of the country. In the event that a taxpayer has been declared bankrupt, the Directorate General of Taxes still has the right to overtake and is privileged, requesting …

Riding The Wave: Fairness For Foreign Investors In India’S Impending Insolvency Tsunami, Nicole Mecca

Fordham Journal of Corporate & Financial Law

Reminiscent of the warning signs of a tsunami, bankruptcy and insolvency courts across the globe have been eerily calm despite unprecedented conditions during the COVID-19 pandemic. The full extent of the pandemic’s effect, including a tidal wave of wide-spread corporate and financial sector harm and wide-spread economic distress, remains to be seen. Much like victims of natural disasters, unsuspecting and increasingly delayed courts will find themselves totally overwhelmed. The inconvenience felt by the courts is distinct, however, from potential harm to financial investors. Although investors could also be harmed by these judicial conditions, they knowingly assumed certain financial risk when …

Clarity About Comity: How Courts Have Attempted Greater Guidance For Chapter 15 Litigants, Sabrina Lieberman

Northwestern Journal of International Law & Business

Abstract

This note explores the development of courts’ refusal to extend comity to foreign representatives who have filed a proceeding under chapter 15 of the U.S. Bankruptcy Code. Congress adopted chapter 15 as part of a comprehensive 2005 bankruptcy reform. It allows foreign entities to receive protection under the U.S. Bankruptcy Code. In most cases, foreign representatives who file a chapter 15 proceeding are involved with ancillary insolvency proceedings outside the United States. There is often a question of how or if a U.S. court overseeing the chapter 15 proceeding will defer to a judgment or process within the foreign …

Law School News: Distinguished Research Professor: John Chung 05-24-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow

Law & Economics Working Papers

Soft law is on the ascent in international insolvency, seeming now to occupy a preferred status over boring old conventions. An arguably constitutive aspect of soft law, which some contend provides a normative justification for international law generally, is its "dialogic" nature, by which I mean its intentional exposure to recursive norm contestation and iterative development: soft law starts a dialogue. The product of that dialogue, on a teleological view, may well be hard law. In the international insolvency realm, that pathway is through (soft) model domestic legislation that aspires toward enactment as municipal law. The happy story is that …

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Layering, Conversion, And Drifting: A Comparative Analysis Of Path Dependent Change In Consumer Insolvency Systems, Megan Mcdermott

Chicago-Kent Law Review

The past twenty-five years have been marked by major developments in consumer insolvency systems around the world. The threshold challenge for comparative scholars is to keep up with the changes occurring in individual countries, as a necessary—but preliminary—step toward broader comparisons of the historical, social, and institutional forces in consumer bankruptcy. In order for deeper work to take place, though, the field needs consensus on what factors are most useful to analyze. Moreover, the dynamic environment of consumer insolvency requires a framework for analysis that is flexible and adaptable enough to provide insights notwithstanding the rapid changes in the field. …

The Ammanati Affair: Seven Centuries Old, And Not Feeling The Age, Eugenio Vaccari

Chicago-Kent Law Review

The enactments of the UNCITRAL Model Law on Cross-Border Insolvency and the European Regulations on insolvency proceedings have promoted an incremental approach towards substantive harmonization. This strategy has not remained unquestioned. One of the major criticisms is that such a course of actions overlooks the nature of the issues currently raised in multi-national and cross-disciplinary bankruptcy procedures.

This Article focuses on the Anglo/American bankruptcy tradition. It adopts a doctrinal methodology to question the conclusion that “collectivity” is and should be a procedural, objective, and secondary notion in light of two case studies. It suggests that in the context of cross-border, …

Market Organisations And Institutions In America And England: Valuation In Corporate Bankruptcy, Sarah Paterson

Chicago-Kent Law Review

Courts in England and the United States have traditionally adopted different approaches to the question of valuation in debt restructuring cases. In England, courts have tended to determine whether to approve the allocation of equity in a debt restructuring by reference to the amounts creditors would have received if no debt restructuring had been agreed. The company has typically argued that if no debt restructuring had been agreed either the business or the assets would have been sold. Typically, some evidence of exposure of the business and assets to the market will be submitted to identify the value which would …

Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn

Jason Kilborn

This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation of …

Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn

Brooklyn Journal of International Law

This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation of …

An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster

Articles by Maurer Faculty

This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E’s Emirate of Dubai was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a coordinated fashion, …

International Insolvency Case Venue In The European Union: The Parmalat And Daisytek Controversies, Samuel Bufford

Hon. Samuel L. Bufford

The European Union Insolvency Regulation (the EU Regulation) is a giant step forward in promoting international cooperation among EU countries for cross-border insolvency proceedings. It adopts a modified universalist solution to cross-border proceedings insofar as they are located within the EU. However, experience has shown that it needs improvement to work effectively. A venue battle now rages between courts of several European countries over which country's courts will administer particular cross-border proceedings and how the center of main interest is to be determined for this purpose. This Article begins with a detailed examination of the two principal cases where conflicts …

Global Venue Controls Are Coming: A Reply To Professor Lopucki, Samuel Bufford

Hon. Samuel L. Bufford

This Article details my disagreements with Professor Lynn LoPucki's article "Global and out of Control" (79 Am. Bankr. L.J. 79). Part I discusses universalism and territorialism, especially the modified version of universalism that I support. Part II examines the international venue provisions of the Model Law and the EU Regulation. Part III introduces the relevant venue shopping cases. Only two groups of cases are relevant for the purpose of this paper: the French and German subsidiaries of Daisytek and Eurofood (a subsidiary of Parmalat SpA, the Italian conglomerate). None of the other cases that Professor LoPucki discusses was subject to …

Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, Jason J. Kilborn

Jason Kilborn

In 2011, the World Bank initiated its first-ever examination of the policies and characteristics of effective insolvency systems for individuals (natural persons). This paper describes the two-year process that led to the publication of the World Bank’s landmark Report on the Treatment of the Insolvency of Natural Persons. After examining the key content and three major themes of the Report, three of the most recent new personal insolvency regimes are introduced with an eye to identifying the ways in which the themes of the Report are reflected in these new laws. The personal insolvency provisions in Colombian law most directly …

Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, Jason J. Kilborn

Pace International Law Review

In 2011, the World Bank initiated its first-ever examination of the policies and characteristics of effective insolvency systems for individuals (natural persons). This paper describes the two-year process that led to the publication of the World Bank’s landmark Report on the Treatment of the Insolvency of Natural Persons. After examining the key content and three major themes of the Report, three of the most recent new personal insolvency regimes are introduced with an eye to identifying the ways in which the themes of the Report are reflected in these new laws. The personal insolvency provisions in Colombian law most directly …

Reframing International Financial Regulation After The Global Financial Crisis: Rational States And Interdependence, Not Regulatory Networks And Soft Law, Matthew C. Turk

Michigan Journal of International Law

The British bank Northern Rock failed on September 14, 2007; U.S. investment bank Bear Stearns collapsed on March 17, 2008 and was subject to a government-engineered takeover by J.P. Morgan Chase; and, on the night of September 15, 2008, U.S. investment bank Lehman Brothers filed for bankruptcy and sent global financial markets into disarray the following Monday morning. These financial institutions shared several features in common prior to their downfall, but perhaps the most curious is that they were each considered fully compliant with the second generation framework for the Basel Accords on Capital Adequacy (Basel II), an international agreement …

The Scorecard So Far: Emerging Issues In Cross-Border Insolvencies Under Chapter 15 Of The U.S. Bankruptcy Code, Megan R. O'Flynn

Northwestern Journal of International Law & Business

Chapter 15 of the U.S. Bankruptcy Code was modeled after the Model Law on Cross-Border Insolvency, drafted by the United Nations Commission on International Trade and Law (UNCITRAL) in 1997. Despite the relatively small number of cases commenced in U.S. Courts under Chapter 15 since its adoption, no other section of the current Bankruptcy Code has broader implications for international business transactions and global foreign business relations than the provisions of Chapter 15. Moreover, since the United States has long been an innovator at the forefront of international insolvency law, interpretation of key provisions of the Chapter and related UNCITRAL …

The Transnational Law Market, Regulatory Competition, And Transnational Corporations, Horst Eidenmuller

Indiana Journal of Global Legal Studies

In many regions of the world and across various fields, law has become a product. Individuals and companies seek attractive legal regulations, and countries advertise their legal wares globally as they compete for customers. Transnational corporations in particular are prominent actors in the emerging transnational law market. This article investigates the causes of this development and discusses these changes with respect to company law, contract law, the law of dispute resolution, and insolvency law. It assesses the market for legal rules and its practical consequences, and it provides legal policy recommendations for an efficient framework of the transnational law market. …

A Test Case In International Bankruptcy Protocols: The Lehman Brothers Insolvency, Jamie Altman

San Diego International Law Journal

Part II of this Article, explains the competing theories underlying bankruptcy systems: universalism and territorialism. Part III details various statutory solutions to international bankruptcy problems. Next, Part IV analyzes the provisions of the Lehman Protocol in depth. Part V then examines the precedent upon which the Lehman Protocol relies. Part VI assesses potential threats to the Protocol?s success. This leads to Part VII, which contains suggestions for future protocols. Finally, Part VIII concludes.

Bank Regulatory Reform In The Republic Of Serbia, Gary A. Gegenheimer

South Carolina Journal of International Law and Business

No abstract provided.

International Insolvency Case Venue In The European Union: The Parmalat And Daisytek Controversies, Samuel Bufford

Journal Articles

The European Union Insolvency Regulation (the EU Regulation) is a giant step forward in promoting international cooperation among EU countries for cross-border insolvency proceedings. It adopts a modified universalist solution to cross-border proceedings insofar as they are located within the EU. However, experience has shown that it needs improvement to work effectively. A venue battle now rages between courts of several European countries over which country's courts will administer particular cross-border proceedings and how the center of main interest is to be determined for this purpose.

This Article begins with a detailed examination of the two principal cases where conflicts …

International Secured Transactions And Insolvency, Mark J. Sundahl, Susan Jaffe Roberts, Jeff Carruth, Walter Douglas Stuber

Law Faculty Articles and Essays

The following article surveys some of the significant developments in the field of cross-border insolvencies and secured financing during the twelve months prior to December 1, 2005. The most publicized and long-awaited bankruptcy development was the enactment of legislation in the United States to adopt the UNCITRAL framework for the recognition of foreign insolvency proceedings. Even with the adoption of the UNICTRAL framework, American courts continued to render significant decisions under the former law which may, over time, inform practice, under the UNICTRAL provisions. Brazil also enacted significant bankruptcy reforms during 2005. The international law of secured transactions experienced a …

Global Venue Controls Are Coming: A Reply To Professor Lopucki, Samuel Bufford

Journal Articles

This Article details my disagreements with Professor Lynn LoPucki's article "Global and out of Control" (79 Am. Bankr. L.J. 79). Part I discusses universalism and territorialism, especially the modified version of universalism that I support. Part II examines the international venue provisions of the Model Law and the EU Regulation. Part III introduces the relevant venue shopping cases. Only two groups of cases are relevant for the purpose of this paper: the French and German subsidiaries of Daisytek and Eurofood (a subsidiary of Parmalat SpA, the Italian conglomerate). None of the other cases that Professor LoPucki discusses was subject to …

International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman

Michigan Law Review

The globalization of business activity is rightfully celebrated as one of the triumphs of the second half of the twentieth century. The benefits stemming from the globalization of commerce are substantial, but international transactions also bring with them important challenges for the world's legal systems. Traditionally, national governments could focus on their domestic economies without undue attention to international issues. Today, however, a country's policymakers must respond to the growth in international business activity with appropriate legal changes. Failure to do so will cause their legal regimes to fall further and further out of step with the needs of the …

Christians V. Crystal Evangelical Free Church: Interpreting Rfra In The Battle Among God, The Government, And The Bankruptcy Code, Susan Franck

Susan D. Franck

In the past, religious debtors have used the Religious Freedom Restoration Act (RFRA) to tithe to their churches at a time when they were insolvent and questions have arisen whether these tithes are fraudulent transfers, which should be repatriated to the bankruptcy estate for the benefit of all creditors. This case comment analyzes the first circuit court opinion to evaluate the intersection of religious tithing, bankruptcy, fraudulent conveyance law and RFRA. In light of the doubts as to RFRA's constitutionality, this comment argues for a narrow interpretation of RFRA and, when determining the scope of free exercise protection, courts should …

Brief Incursion Into Bankruptcy And The Enforcement Of Creditor's Rights In Brazil, Antonio Mendes

Northwestern Journal of International Law & Business

This article is an overview of bankruptcy law and concerns in Brazil, as well as a exploration of what rights creditors have in bankruptcy.

International Environmental Bankruptcy: An Overview Of Environmental Bankruptcy Law, Including A State's Claims Against The Multinational Polluter, Rick M. Reznicsek

Vanderbilt Journal of Transnational Law

This Note focuses on current environmental bankruptcy law in the United States. It analyzes the claims of a state against a corporate polluter when the corporation discharges a toxic substance in violation of the state's environmental laws, refuses to clean up the waste, and then files bankruptcy in lieu of paying for the cleanup.

This Note analyzes the court decisions subsequent to the United States Supreme Court opinions in Ohio v. Kovacs and Midlantic National Bank v. New Jersey Department of Environmental Protection to evaluate the current status of United States bankruptcy law on the issues of the automatic stay; …

Successor Liability In Bankruptcy: Some Unifying Themes Of Intertemporal Creditor Priorities Created By Running Covenants, Products Liability, And Toxic-Waste Cleanup, David G. Carlson

Articles

No abstract provided.

United States Judicial Assistance In Cross-Border Insolvencies, Douglass G. Boshkoff

Articles by Maurer Faculty

No abstract provided.