There is increasing regulatory interdependence amongst Central, East and South East Asian, European and North American financial markets, and these markets account for over one-third of the worlds population and global financial markets. As Asian markets become more integral to global financial economy, more cohesive, compatible and integrated insolvency and restructuring laws are essential. This two-volume work reviews why we should internationalise current cross-border insolvency and how we could restructure laws to address inadequacies.
The two volumes evaluate international regulatory reforms directed at detecting and managing cross-border insolvency and restructuring crises across the entire economy including financial markets. The authors call for schemes of arrangements and letters of comfort to be formally accepted as international legal tools. The work also assesses recent, but as yet largely unregulated developments in financial agreements, particularly the use of close-out netting provisions that serve as significant protective mechanisms prior to the declaration of an insolvency. It discusses international arbitration, data protection and artificial intelligence in crossborder insolvency and restructuring. Finally, the book seeks a meaningful balance between self-regulation through financial contracts and other party practices, and regulation imposed by governments and international financial regulators.
This extensive work will be a useful reference for legal practitioners, policy makers and scholars working on financial regulation and international financial laws.
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xi | |
| Foreword |
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xii | |
| Preface |
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xiv | |
| Acknowledgement |
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xvi | |
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1 | (50) |
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1 | (12) |
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1.1.1 Cross-Border Insolvency |
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8 | (3) |
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1.1.1.1 Transnational Insolvency (UNCITRAL Model Law) |
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11 | (2) |
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13 | (12) |
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1.2.1 Schemes of Arrangement |
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14 | (2) |
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1.2.2 Keepwell Agreements and Letters of Comfort |
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16 | (4) |
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1.2.3 Mergers and Acquisitions |
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20 | (5) |
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25 | (4) |
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1.3.1 Derivative Collateral Contracts (ISDA Master Agreement) |
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28 | (1) |
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1.4 The Need for Further International Reform |
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29 | (9) |
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38 | (5) |
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43 | (1) |
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44 | (1) |
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44 | (4) |
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48 | (3) |
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2 Transnational Insolvency: Part 1 |
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51 | (29) |
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51 | (3) |
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2.2 The Evolution of Insolvency |
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54 | (7) |
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2.3 Internationalisation of Insolvency Law |
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61 | (6) |
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2.4 UNCITRAL Model Law on Cross-Border Insolvency (Model Law) |
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67 | (8) |
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2.5 Time for the Model Law to be Raised to Convention Status |
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75 | (1) |
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76 | (4) |
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2 Jurisdictions Approach towards Cross-Border Insolvency Part 2 |
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80 | (41) |
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80 | (1) |
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81 | (7) |
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88 | (11) |
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96 | (3) |
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99 | (8) |
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106 | (1) |
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107 | (6) |
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112 | (1) |
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113 | (4) |
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117 | (4) |
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3 Restructuring: Schemes of Arrangements Part 1 |
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121 | (42) |
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121 | (7) |
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3.1.1 Schemes of Arrangement: ISDA Master Agreements and Netting Arrangements |
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125 | (3) |
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128 | (8) |
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136 | (15) |
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141 | (10) |
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151 | (8) |
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159 | (4) |
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3 Restructuring: Schemes of Arrangements Part 2 |
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163 | (35) |
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163 | (12) |
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175 | (5) |
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180 | (8) |
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188 | (7) |
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195 | (3) |
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4 Restructuring: Letters of Comfort |
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198 | (45) |
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198 | (7) |
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205 | (10) |
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4.3 European Union and United Kingdom |
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215 | (4) |
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219 | (7) |
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226 | (2) |
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228 | (2) |
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230 | (6) |
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236 | (2) |
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238 | (2) |
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240 | (3) |
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5 Restructuring: Mergers and Acquisitions Part 1 |
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243 | (30) |
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243 | (7) |
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250 | (10) |
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5.2.1 Foreign Purchasing Rule |
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255 | (5) |
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260 | (8) |
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5.3.1 Foreign Purchasing Rule |
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263 | (5) |
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268 | (2) |
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5.4.1 Foreign Purchasing Rule |
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268 | (2) |
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270 | (3) |
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5 Restructuring: Mergers and Acquisitions Part 2 |
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273 | (23) |
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273 | (9) |
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5.1.1 Foreign Purchasing Rule |
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279 | (3) |
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282 | (5) |
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5.2.1 Foreign Purchasing Rule |
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285 | (2) |
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287 | (7) |
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5.3.1 Foreign Purchasing Rule |
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289 | (5) |
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294 | (2) |
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6 Close-Out Netting (Arrangements) Part 1 |
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296 | (36) |
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297 | (4) |
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6.2 Harmonising Multilateral Netting Arrangements |
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301 | (28) |
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304 | (1) |
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6.2.2 Legal Mechanism Protecting Insolvency |
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305 | (4) |
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6.2.3 Eligible Parties and Eligible Financial Contracts |
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309 | (5) |
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6.2.4 Formal Requirements & Conflict-of-Laws Rules |
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314 | (5) |
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6.2.5 ISDA Master Agreements: Derivative Contracts |
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319 | (3) |
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6.2.6 Over-the-Counter (OTC) Derivatives |
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322 | (2) |
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6.2.7 ISDA 2018 Model Netting Act |
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324 | (1) |
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324 | (1) |
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6.2.9 Enforcement and Termination |
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325 | (1) |
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6.2.10 Multi-Branch Netting |
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326 | (1) |
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327 | (1) |
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6.2.12 Influence of ISDA Model Netting Act |
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328 | (1) |
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329 | (3) |
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6 Jurisdictional Comparisons of Netting Arrangements Part 2 |
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332 | (44) |
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332 | (13) |
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341 | (4) |
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345 | (6) |
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349 | (2) |
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351 | (14) |
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361 | (4) |
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365 | (8) |
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373 | (3) |
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6 Jurisdictional Comparisons of Netting Arrangements Part 3 |
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376 | (39) |
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6.1 European Union: United Kingdom |
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376 | (20) |
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6.1.1 United Kingdom: Brexit |
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386 | (5) |
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391 | (5) |
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396 | (9) |
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402 | (2) |
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404 | (1) |
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405 | (8) |
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413 | (2) |
| Index |
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415 | |
Leon Trakman is UNSW Emeritus Professor and Former Dean of Law at the University of New South Wales in Sydney, Australia. He has held professorial appointments in the United States, at the University of Wisconsin, University of California (Davis) and Tulane; in Canada at McGill and Dalhousie; and in Australia at UNSW. He is author of ten books and over 150 journal articles, including on topics that are addressed in this book. A barrister and international commercial arbitrator, he serves on international commercial arbitration panels of global arbitration centres. A panellist under the NAFTA, he was regularly appointed by the US, Canadian and Mexican Governments to resolve trade and investment disputes. He currently serves on the remedies panel of the United States-Mexico-Canada Agreement (USMCA). He holds both masters and doctorate degrees from Harvard University.
Robert Walters is Senior Lecturer, Victoria University, Melbourne, Australia. Dr. Walters is also Adjunct Professor of Law, European Faculty of Law, New University, Slovenia, Europe, and admitted to practice law in Australia. In 2021 and 2022, he undertook a full Professorship at the European Faculty of Law. Dr. Walters is a Qualified International Arbitrator. He is a member of ASEAN Law Association Singapore, Asia Pacific Scholar (Privacy/Data Protection) Network. His work on cross-border data flows in the new digital economy has been recognised globally, and in 2021 and 2022 he was engaged by national governments to undertake a project on determining data flows, data adequacy, data protection, cyber security and artificial intelligence across commonwealth countries. This work was commissioned to strengthen economic outcomes to a number of commonwealth countries in the digital economy and international trade. Dr. Walters specialises in transnational commercial and private law (data protection, cyber security, artificial intelligence, trade, cross-border insolvency/restructuring (netting arrangements), contracts, arbitration).
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