Document Type

Article

Publication Date

2014

Abstract

The title of this Article purports to develop a normative framework for cross-border insolvency choice of law. That can be a task of varying scope, so at the outset any pretense of ambition for a wholly new choice of law model should be dispelled. Indeed, at the most generalized level, bankruptcy choice of law theory has already been fully ventilated in the well-rehearsed universalism versus territorialism debates. And it has been settled. The universalists, at least as a normative matter, appear to have won: choice of law, as it is increasingly accepted, should be determined by the debtor's center of main interests (COMI). But no sooner did the universalists claim theoretical superiority than did they bow to concessions animated by such pragmatic concerns as reality, begetting the now dominant paradigm of modified universalism. One could argue this raises a nomenclature question: is "modified universalism" an independent normative theory for choice of insolvency law in cross-border proceedings or is it merely a pragmatic gloss put on the universalist theory, which retains the normative theoretical core? For purposes of this Article, I prefer to cast modified universalism as its own normative theory. Modified universalism is more specifically a second-order choice of law theory. It argues that the theoretical purity of universalism is desirable as a first-order matter, but because that purity is not yet attainable and because incremental advancement toward universalism is preferable to failed swings for the fences, a second-order approach is warranted. This second-order theory is mindful of pragmatic constraints and counsels that it is normatively desirable to "modify" universalism with some territorialist concessions. Thus, non-trivial accommodation of local law not only can but also should be tolerated in cross-border insolvency proceedings.


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