Modified Universalism As Customary International Law

Abstract

This Article considers how modified universalism, which is to date the dominant approach for addressing cross-border insolvency, may be elevated from a broad approach to a recognized, international legal source that can be invoked and applied in a more concrete and consistent manner across legal systems. It draws from sources of international law and, specifically, the concept of customary international law (CIL). CIL is a key legal source that fills gaps in international treaties, influences treaty regimes, and regulates in areas not covered by treaties or by other instruments or regarding countries that are not parties to a treaty or to another regime. CIL is also useful as a ‘debiasing’ mechanism because its application does not require active action by all participants where it operates as a default (opt-out) rule. It can thus overcome certain robust biases and territorial inclinations that can influence countries and implementing institutions’ decisions and that can impede movement towards the universal application of modified universalism. The Article suggests how modified universalism can transform into CIL. It also highlights the prominent international role of private international law and, thus, the role of actors and participants in international insolvencies as creators and guardians of international law.

Keywords: modified universalism, customary international law, cross-border insolvency