Cros-border insolvecny and recodification of Ukrainian civil legislation

This article highlights some aspects of insolvency regulation in the context of recodification of civil legislation in Ukraine. Proposals may be used in the process of further improvement of current legislation regarding international aspects of bankruptcy in order to reflect the modern trends in private international law, including international civil procedure. While doing research it was taken into account that bankruptcy is an extremely complex area of law with very specific rules to administer this category of cases, as in most cases the decision usually is about economic measures aimed at resolution of debt problems. The complexity of administering such cases increases when there is a foreign element in it, as the success of conflict resolution must be ensured, inter alia, by coordinating the actions of judges and appointed administrators in the court proceedings opened in different jurisdictions. While doing research it was identified that the current practice in Ukraine of dealing with so-called cross-border insolvency cases to resolve conflicts of conflicting laws shows the ineffectiveness of the application of legal constructions well known in private international law, including reciprocity and public order (public policy). The easiest way to solve the existing problems can be to completely exclude the relevant provisions from the text of the Bankruptcy Code of Ukraine, and suggest the courts applying the relevant provisions of special law in the field of conflict of law – the Law on Private International Law. In the process of recodification of private international law, it is proposed to harmonize the procedural norms of the bankruptcy law with provisions on international civil procedure. This is about those rules which contain provisions on the exclusive jurisdiction of bankruptcy cases and the center of main interests. There is also a need to revise and modernize the current legislation regarding procedural aspects of bankruptcy, including the provisions on legal aid and letters of requests. These provisions should be a part of legal set of tolls under international civil procedure as part of private international law. The implementation of these tasks will be a significant step in bringing the legislation on international civil procedure to international standards, and to bring application of the norms of this area of legislation to the best world practice. The result will be a change in the practice of refusing to recognize foreign bankruptcy proceedings on insufficient grounds, and recognizing foreign bankruptcy proceedings will help to establish an effective cooperation between the courts and appointed administrators

Doi: 10.31359/1993-0909-2022-29-4-111