| Abstrakt: |
The article is devoted to the study of the peculiarities of the administration of the cross-border insolvency procedure in England, the analysis of the in-state insolvency procedure complicated by a foreign element, and concurrent proceedings. The author emphasizes that the legislation of Great Britain on insolvency prescribes three categories of proceedings: 1) classic cross-border insolvency procedure, which is characterized by the principle of unitarism and consists in the existence of one in-state insolvency procedure with its subsequent recognition by Great Britain and the granting of the necessary assistance; 2) in-state insolvency proceedings complicated by a foreign element (for instance, there is a foreign debtor or a foreign creditor); 3) concurrent proceedings, i.e. the existence of two or more simultaneous in-state proceedings concerning one debtor, one of the proceedings takes place in a Great Britain. The article discloses the specifics of each of the above categories of proceedings. Based on the results of the research, the author concludes that there are different legal regulations on initiating in-state insolvency proceedings in England depending on the type of foreign debtor – a natural or legal entity. It has been proven that according to the current provisions of the Insolvency Act, the administrator of a foreign insolvency procedure cannot initiate an in-state insolvency procedure concerning a debtor who is a natural person. It was found that there is no special legal regulation in England regarding foreign debtors – natural persons as opposed to legal entities. Furthermore, it has been proven that the initiation of in-state insolvency proceedings against a foreign debtor – a legal entity is much easier than against a natural person given the possibility of such initiation subject to certain established requirements for any foreign legal entity. The judicial practice of cross-border insolvency is analyzed, namely the decision of the judicial institution of the state of New York, as a result of which the possibility of using the theory of territorialism in cross-border insolvency is proved. It is substantiated that the theories of universalism and territorialism, as well as the theory of contractualism, in their pure form cannot be applied to the concurrent proceedings in cross-border insolvency. In connection with this, the author proposed a new theory of territorial universalism as a combination of the theories of modified universalism and cooperative territorialism. It is proved that concurrent proceedings are an example of the theory of territorial universalism. It is substantiated that the Cross-Border Insolvency Regulations 2006 is a compromise solution, because their provisions allow the simultaneous existence of three types of theories of cross-border insolvency – universalism, territorialism and territorial universalism, and therefore leaving too much discretion for judicial institutions. [ABSTRACT FROM AUTHOR] |
