Recognition of Foreign Bankruptcies: An Analysis and Critique of the Inconsistent Approaches of United States Courts

The American Bankruptcy Law Journal, Vol. 66, No. 1, p. 135, 1992

98 Pages Posted: 7 Jan 2010 Last revised: 12 Feb 2010

See all articles by Charles D. Booth

Charles D. Booth

Institute of Asian-Pacific Business Law, William S. Richardson School of Law, University of Hawaii at Manoa; University of Hawaii at Manoa - William S. Richardson School of Law

Date Written: 1992

Abstract

One of the glaring omissions in private international law has been the failure of nations to reach accord about transnational insolvency. Historically, there has been little formal cooperation among bankruptcy courts worldwide. Most have long responded to the problem of what effect to give to foreign bankruptcies by protecting domestic interests and local creditors, and at times even discriminating against foreign creditors. This nationalistic approach to bankruptcy laws has often resulted in full liquidation proceedings in every country in which the assets of a debtor are located. It has also caused duplication of expenses and litigation, inequitable distributions to creditors worldwide, and instability in the climate for international trade. This article discusses US law regarding the recognition of foreign bankruptcy proceedings. The article provides an overview of the historical development of that law. It then examines the the statutory regime in the US Bankruptcy Code involving sections 303(b)(4), 304, and 305, with a focus on section 304. The article highlights the inconsistent approaches taken by the US courts in determining whether to recognize and assist foreign bankruptcies and proposes criteria to guide US courts in making those decisions.

Suggested Citation

Booth, Charles D., Recognition of Foreign Bankruptcies: An Analysis and Critique of the Inconsistent Approaches of United States Courts (1992). The American Bankruptcy Law Journal, Vol. 66, No. 1, p. 135, 1992, Available at SSRN: https://ssrn.com/abstract=1532402

Charles D. Booth (Contact Author)

Institute of Asian-Pacific Business Law, William S. Richardson School of Law, University of Hawaii at Manoa ( email )

University of Hawai'i at Manoa
2515 Dole Street
Honolulu, HI 96822-2328
United States

University of Hawaii at Manoa - William S. Richardson School of Law ( email )

2515 Dole Street
Honolulu, HI 96822-2350
United States

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