Развитие международно-правового регулирования трансграничных банкротств

Abstract

The foreign element of bankruptcy can b e presented by the following: the debtor is not the resident of the country of the court or has nationality of another state; the property of the debtor is situated on the territory of another state; the creditors are not residents of the country of the court; the procedures of bankruptcy concerning the same debtor are carried out in the foreign state and in the country of the court; the foreign competitive manager participates in the domestic procedure of bankruptcy. The resolution of bankruptcy problems is based on strictly imperative rules. According to international private law these norms are a part of public order domain. Thus, conclusion of transnational bankruptcy with the help of classical mechanisms of international private law seems to be complicated. The complexities and gaps of legal regulation of transnational bankruptcy can b e explained by the absence of special legal provisions in national and in international law. Nowadays the most significant result of universal unification in the considered area is The European Convention o n International Aspects of Bankruptcy (signed in Istanbul in 1990, henceforth the European Convention) which has not come into force. The European Convention mechanisms allow: a) to recognize the competence of the manager appointed in the foreign member-state, b) to realize procedures of secondary bankruptcy in any member-state, in which the bankrupt has property, c) to protect rights of foreign creditors (informing, nondiscrimination). In Belarus the situation of transnational bankruptcy is not very acute. However, sometimes there are foreign elements in the Belarusian procedures of bankruptcy: the property of the debtor is situated abroad; foreign creditors declare their claims, etc. Certain problems of transnational bankruptcy are mentioned in the legislation of the Republic of Belarus. In particular, the possibility for foreign creditors to declare their claims is recognized. But the exterritorial effect of the Belarusian bankruptcy procedures can b e achieved only through the operation of reciprocity and legal help mechanisms. On the one hand, the appearance in the Belarusian legislation of the transnational bankruptcy concept and participation of our state in the international agreements dedicated to this problem would provide more efficient protection to the Belarusian creditors abroad. On the other hand, it would grant better rating concerning stability and predictability of investments and economic climate in our country.