Law Commons^™

Recognition And Enforcement In Cross-Border Insolvency Law: A Proposal For Judicial Gap-Filling, Professor Sandeep Gopalan, Michael Guihot

Vanderbilt Journal of Transnational Law

The globalization of business activity necessarily entails contacts with a diverse array of national laws and legal systems, and insolvencies in this context often have transnational consequences. In such situations, there is a clash of competing national laws on weighty questions including the recognition of security interests, processes related to the disbursal of assets, and different policy preferences underlying the protection of different kinds of creditors. These clashes pose difficulties because each country has framed its insolvency laws in response to particular political exigencies and the policy preferences of its citizens, reflecting different bargains between creditor and debtor protection. Despite …

The Hidden Life Of Consumer Bankruptcy Reform, Jason J. Kilborn

Vanderbilt Journal of Transnational Law

This Article offers a unique perspective on the heavily revised U.S. consumer bankruptcy law, which went effect on October 17, 2005, in light of a surprising discovery: It turns out that the U.S. consumer bankruptcy system as "reformed" resembles in many critical respects the consumer bankruptcy system in place for the past six years in the Netherlands. As a result of this serendipitous U.S.-Dutch convergence, years of experience under the Dutch consumer debt relief system can provide a rare glimpse into the future of the new U.S. system. The Dutch law in practice has diverged in significant ways from legislative …

A Brave New Lochner Era? The Constitutionality Of Nafta Chapter 11, Steve Louthan

Vanderbilt Journal of Transnational Law

In the eight years since its adoption, NAFTA Chapter 11 has escaped significant scrutiny from academics and journalists alike. However, with the recent filing of several Chapter 11 expropriation claims involving U.S. states, Chapter 11 has begun to gain some notoriety in the press and sparked at least two legal symposia this past year.

This Note begins by highlighting the recent Methanex Chapter 11 claim involving the State of California. Methanex, a Canadian chemical manufacturer and importer, claimed $1.6 billion in damages over California's ban of the chemical MTBE. Despite the EPA'S classification of MTBE as a possible carcinogen and …

Self-Settled Spendthrift Trusts: Should A Few Bad Apples Spoil The Bunch?, Gideon Rothschild, Daniel S. Rubin, Jonathan G. Blattmachr

Vanderbilt Journal of Transnational Law

It is unfortunate, but perhaps not terribly surprising, that the first two reported cases to consider the application of conflict of laws principles to self-settled spendthrift trusts both involved "bad facts" from an asset protection planning standpoint. In this regard, the adage "bad facts produce bad law" is not a slight on the courts, but rather an acknowledgment of a court's primary duty to do substantial justice to the parties immediately before it. However, in an effort to do substantial justice to the parties immediately before them, the Portnoy and Brooks courts have forged what may well become the first …

Roundtable Discussion, David Aronofsky, Barry S. Engel, Eric Henzy, Gideon Rothschild, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

Welcome to the Roundtable panel discussion. Each of the speakers is going to open with a few minutes statement. And then we're going to pose some questions to open discussion, so it will take people through the whole asset protection route from beginning to end, hopefully. And then, any questions you may have we believe we'll have sufficient time to ask those questions and have them answered. You may get very different views. And then we've just decided that the jury will decide whether asset protection trusts are a good thing or a bad thing. Okay. So pay attention.

The Evolution Of The Fresh-Start Policy In Israeli Bankruptcy Law, Rafael Efrat

Vanderbilt Journal of Transnational Law

A fresh-start policy in bankruptcy provides the honest but financially troubled individual some form of financial relief in an attempt to provide him with an opportunity to productively reintegrate into the economy and society. While some countries today provide broad financial relief to individuals who resort to bankruptcy protection, many countries have retained a largely limited as well as punitive fresh-start policy.

This Article explores the evolution of the fresh-start policy in Israel. While it briefly examines the attitudes and practices adopted towards financially troubled individuals historically in the Jewish tradition, it focuses on tracing those attitudes and practices to …

Public Policy Concerns Prevent Application Of Comity To Foreign Bankruptcy Proceedings That Discriminate Against Tax Obligations Owed To The United States Government, Michael P. Bigelow

Vanderbilt Journal of Transnational Law

This Case Comment explores the application of comity to foreign bankruptcy proceedings, particularly when comity would render the Internal Revenue Service a general unsecured creditor in bankruptcy. The United States Court of Appeals for the Fifth Circuit held on public policy grounds that comity should not be accorded to a Luxembourg bankruptcy proceeding that discriminated against tax obligations owed to the United States government. This Case Comment discusses the factual setting for the instant decision and presents a brief history of transnational insolvency law. The author finds that the law of transnational insolvency is inconsistent and underdeveloped and that the …

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; …

Bankruptcy Law Of The People's Republic Of China: Principle, Procedure & Practice, Henry R. Zheng

Vanderbilt Journal of Transnational Law

The Enterprise Bankruptcy Law of the People's Republic of China (For Trial Use) (the National Act), promulgated on December 2, 1986, is the first bankruptcy legislation applicable nationwide in the People's Republic of China (PRC or China). At the same time, some regional governments have also enacted regional bankruptcy laws with very limited geographic application. The National Act applies only to state-owned Chinese enterprises, while one regional bankruptcy regulation applies exclusively to foreign investment enterprises." The PRC thus has developed two parallel bankruptcy regimes. The introduction of a bankruptcy system in China represents a significant development in the economic relationship …

The Enterprise Bankruptcy Law Of The People's Republic Of China (For Trial Use): A Translation, Henry R. Zheng

Vanderbilt Journal of Transnational Law

Art. 1. This law is enacted to meet the need for development of the planned socialist commodity economy and for economic reform, to promote the independence of business management of the enterprises under the ownership by the whole people, to strengthen the system of economic responsibility and democratic management, to improve business management and economic performance, and to protect the lawful rights and interests of debtors and creditors. Art. 2. This law applies to enterprises under the ownership of the whole people.

Art. 3. Enterprises that sustain serious loss due to inappropriate management and that are unable to pay off …

Case Comment, Laura F. Howard

Vanderbilt Journal of Transnational Law

SCOPE OF REVIEW IN EXTRADITION PROCEEDINGS: The Government Cannot Appeal A Denial of Extradition Request Based on the Declaratory Judgment Act --United States v. Doherty, 786 F.2d 491 (2d Cir. 1986).

BANKRUPTCY--Section 304 Of The Bankruptcy Code Is Not An Exclusive Remedy In A Nonbankruptcy Court, Cunard Steamship Co.Ltd. v. Salen Reefer Serv. A.B., 773 F.2d 452 (2d Cir. 1985).

Creditor Equality In Transnational Bankruptcies: The United States Position, Ulrich Huber

Vanderbilt Journal of Transnational Law

In addition to giving a fresh start to the debtor, a primary goal of bankruptcy law (at least of liquidation bankruptcy) is to distribute equally the debtor's assets to his creditors. Although the Bankruptcy Reform Act of 1978 and its 1984 Amendments (collectively "the Code") provide many ways of achieving this goal in domestic bankruptcies, these methods often prove to be of little help when a debtor's assets are located in more than one country.

Equality of creditors regardless of their origin, however, is considered essential for the development of international trade. International trade has grown substantially, if not explosively, …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Duress is Available Defense in Mitigation of Charges of Illegally Transporting Aliens into the United States--Pollgreen v. Morris slip op. No. 84-5217 (11th Cir. Sept. 17, 1985).

Foreign Debtor not Compelled to File for Ancillary Proceeding under Bankruptcy Code; Court may grant Comity to Pending Foreign Bankruptcy Proceeding--Cunard SteamshipCo. Ltd. v. Salen Reefer Services A.B., 773 F.2d 452 (2d Cir.1985).

Forum Selection Clause in Contract between Two Sovereigns is not Waiver of Right to Remove--Proyecfin de Venezuela v. Banco Industrial de Venezuela, 760 F.2d 390 (2d Cir.1985).

Fifth Circuit Overrides Admiralty Rule and Invokes Provisions of Arbitration Treaty--Sedco, Inc. v. …

Recent Decisions, Kate Eyler, Margaret H. Young, B. Rowland Heyward, Gary I. Christian

Vanderbilt Journal of Transnational Law

Recent Decisions Immigration--Entry Resident Alien Who Makes Brief Visit Outside the Country is Deportable if He Reenters United States at an Unauthorized Location while Aiding Illegal Aliens to Enter

Kate Eyler

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International Banking--Bankruptcy--When Foreign Law Prohibits a Foreign Banking Corporation from Supplying Required Creditors List, Chapter XI Petition Should Not be Dismissed as Inherently Defective

Margaret Helen Young

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The instant case represents a change in long-standing ICC policy at once consistent with its statutory groundwork, yet with potentially drastic economic impact. In the final analysis, the issues were whether the subsequent legislation represented a congressional expression of its …

Case Comments--International Law--Corporations--State Denied Standing To Sue For Injury, Journal Staff

Vanderbilt Journal of Transnational Law

The Barcelona Traction, Light and Power Company, Ltd.,(hereinafter referred to as Barcelona Traction) was incorporated under Canadian law in 1911 with its main office in Toronto. Several subsidiaries were formed, all under Canadian law, to develop, produce, and distribute electric power in the vicinity of Catalonia, Spain. To finance these operations, the company issued both peseta and sterling bonds, the shares in some of the subsidiaries providing security to a Canadian bank for the sterling bonds. Revenue produced by the subsidiaries from their operations in Spain was used to service the bond interest. Servicing was suspended for the duration of …