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- Title
Modified Universalisms 8c The Role of Local Legal Culture in the Making of Cross-Border Insolvency Law.
- Authors
Walters, Adrian
- Abstract
Cross-border insolvency law scholars have devoted much attention to theoretical questions of international system design. There is a general consensus in the literature that the ideal system would be a universalist system in which cross-border insolvencies would be administered in a single forum under a single governing law, but scholars have paid less systematic attention to how a universalist system can be implemented in the real world by institutional actors, such as legislatures and judges. This article see\s to redress the balance by discussing the reception of the UTfCITRAL Model Law on Cross-Border Insolvency in the United States and the United Kingdom and exploring the role that judges play in harmonizing cross-border insolvency law. As the Model Law is choice-of-law neutral, domestic enactments typically contain no express choice-of-law rules. Universalists urge judges to take their cue from modified universalism and interpret Model Law enactments in a manner that approximates to universalism's ideal "one court, one law" approach. But comparative analysis of Anglo-American judicial practice reveals that the contours of modified universalism are contested. "Modified universalism," as it is understood in the United States, implies that judges should presumptively defer to the law of the foreign insolvency proceeding (lex concursus). American univer- salists tend, therefore, to favor a strong, centralizing version of modified universalism. In contrast, British modified universalism has a forum law (lex fori) choice-of-law orientation. British modified universalism supports effective coordination of insolvency proceedings with one court having a primary coordinating role, but it lac\s any commitment to a centralizing lex concursus rule in the absence of statutory mandate. Framed by reference to this account of the Model Law's Anglo-American reception, this article argues that modified universalism offers no convincing theory of how a universalist system is to be institutionalized in practice in the absence of more and harder law, the province of legislatures. Competing versions of modified universalism cannot support an interpretive methodology capable of yielding global judge-made rules of private international law that would address the Model Law's choice-of-law indeterminacy.
- Subjects
UNIVERSALISM (Political science); BANKRUPTCY; CROSS border transactions; LAW &; culture; MODEL laws; CONFLICT of laws; LEX fori
- Publication
American Bankruptcy Law Journal, 2019, Vol 93, Issue 1, p47
- ISSN
0027-9048
- Publication type
Article