PP209
Analítico de Periódico
DAVIES, Martin
Cross-border insolvency and admiralty : a middle path of reciprocal comity / Martin Davies
The American Journal of Comparative Law, v.66 n.1 (Spring 2018), p.101-126
DIREITO INTERNACIONAL PRIVADO / EUA, INSOLVÊNCIA, DIREITO MARÍTIMO, APREENSÃO DE BENS
The law relating to cross-border insolvency is largely founded on the concept of universalism, which requires all claims against the insolvent debtor to be marshaled together in one country, usually that of the debtor’s principal place of business. Any assets of the insolvent debtor that are found in other countries are to be brought into the insolvency proceedings, so that a single, orderly management of claims and assets can take place under the control of the court in which the insolvency proceedings have been opened. In stark contrast, admiralty law has for centuries protected the interests of claimants by allowing them to seize maritime assets such as ships by judicial process in order to satisfy their claims from the seized assets, even if (indeed, especially if) the owner of those assets has entered insolvency proceedings in another country. At first sight, the underlying imperatives of these two bodies of law appear to be irreconcilable. This Article proposes a middle path, according to which neither the country in which insolvency proceedings have been opened nor the country in which admiralty proceedings have led to the seizure of maritime assets should be required unconditionally to concede precedence to the legal proceedings pending in the other. The middle path is one of reciprocal comity, both between the countries in which the parallel proceedings are pending, and also between the two bodies of insolvency law and admiralty law.