Dosificación de materias primas para preparar esmaltes de

The major implications of this research address significant cross-border aspects of international bank insolvencies concerning COMI and the distributional outcomes ensuing from this that have not been previously examined in detail.

Firstly, in lieu of short-term solutions to the conflicts between jurisdictions arising from COMI and the priority ranking of creditor schemes, the long-term solution of harmonization of laws and legal principles, needs to be addressed. The implementation of short-term solutions will prolong the conflicts in international bank insolvencies, and only a long-term solution can adequately address these conflicts. Where appropriate, the harmonization of laws and legal principles would contribute to ensuring the much needed certainty and stability by enabling creditors and other parties to better predict the governing law.1032 The uncertainty and instability has been and continues to be problematic when international insolvency regimes are confronted with international bank insolvency cases.

A realistic goal is the agreement of principles to determine which jurisdiction’s laws govern circumstances, together with mutual recognition of the domestic insolvency regimes and laws.1033 It has been stated that ‘an insolvency regime may require the application of many fundamental private law principles; and a convention on bankruptcy, to be meaningful, may need the participating states to concede that such disputes in their country may be resolved by quite different principles from those which apply in domestic disputes.’1034 As a multinational bank operates as an integrated global unit,1035 there also needs to be consideration of operating principles in legal regimes that guide a determination or the way to proceed during insolvency.

Secondly, this research discovered that in international bank insolvency, the legal instrument of an international convention is needed to enforce potential solutions and encourage further harmonization in international insolvency regimes. The significance of international treaties has long been recognised.1036 From a theoretical point of view, it may be argued that a legal instrument that is capable of enforcing legal principles is at least the only solution. In traditional private international law, harmonization may not be achievable in consideration of the politics of national autonomy.1037 Many arguments have been put forward concerning the impact of insolvency in its economic

1032 _{Richard Garnett, ‘International Arbitration Law: Progress Towards Harmonisation’, (2002) 3 Melbourne}

Journal of International Law 400.

1033 _{Rajak, above n1033, 7.} 1034 _{Ibid, 5.} 1035 _{Hupkes, above n468, 14.} 1036 Ibid, 5. 1037 _{Garnett, above n1021, 410.}

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ramifications on society and the consequence of addressing the negative externalities, through the harmonization of rules.1038 In cases of international bank insolvencies, the enforceability of laws and legal principles is paramount to obtaining fairness and efficiency of outcomes. The concept of an international convention is a mechanism by which national sovereignty and international policies have the potential to reach international agreement. The major jurisdictions of international banks would, arguably, be most relevant to an international convention addressing international bank insolvencies.

Thirdly, the implications for the EU legal framework, in consideration of the impending revision and reform of the EU Insolvency Regulation, concern the omission of subsidiaries of international banks, and the context in which their insolvency operates. Since the onset of the financial crisis and in consideration of the current sovereign crises in Europe, the limited scope of the European Union Directive on the Reorganisation and Winding Up of Credit Institutions1039 to deal with the subsidiaries of a cross-border banking group needs to be given immediate attention. Furthermore, the current approach of the Insolvency Regulation creates significant impediments to the implementation of an effective COMI in one applicable jurisdiction to all other jurisdictions. When dealing with the insolvency of an international bank that crosses various divergent jurisdictions, this exacerbates the complexity and perplexity of conflicts.

The plurality of jurisdictions creates several issues in particular in terms of the coordination between multiple jurisdictions and the inadequate protection of creditors.1040 The ‘profound impact’ on the treatment of participants in international insolvencies and the effect on jurisdictions1041 are significant incentives to find solutions. The implementation of the Insolvency Regulation focuses on the concept of COMI as a ground for opening main insolvency proceedings and its Article 3(1). Article 3(1) of the Directive concerns international regulatory authority and the principle of unity. Notwithstanding this, a significant problem with Article 3(1) is that the concept of COMI can work only with the universality principle whereby one court is competent to open a single set of insolvency proceedings, leading to a worldwide insolvency proceeding. The Insolvency Regulation implies that a specific COMI can be determined for each individual firm. However, the practical experience with this in international bank insolvency cases deems this impractical, inefficient, and costly.

1038 _{Paul Omar, ‘Four Models of Rescue: Convergence or Divergence in European Insolvency Laws? Part 2’,}

(2007) 18 (5) International Company and Commercial Law Review 171, 177.

1039

European Parliament and Council Directive 2001/24/EC on the Reorganisation and Winding-up of Credit institutions (entered into force on 5 May 2001).

1040 _{Dobah Care, ‘Le Systeme Canadien et le Systeme Europeen’, LLM Thesis, Universite de Montreal, June}

2007.

1041

Paul J. Omar, ‘The Landscape of International Insolvency Law’, (2002) 11 INSOL International Insolvency Review 173, 198.

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Fourthly, the Model Law is essentially nationalistic in that it gives to domestic regimes the flexibility to consider the extent to which provisions are adopted.1042 In the case of international banks, the cross-border issues are multi-jurisdictional and therefore, the attempts to resolve these within domestic regimes are not adequate. The solutions can be construed only at an international level. The Model Law is not specifically tailored to address the insolvency proceedings of financial institutions. When jurisdictions that have adopted the Model Law encounter international bank insolvencies, these are subject to general insolvency law. The problems that arise from this dichotomy, as examined in this study, illustrate the potential conflicts and the inadequacy of general insolvency law to deal with the complexities of international banks in insolvency. This is a critical gap that needs immediate attention. When the complexities of resolving cross-border bank insolvencies increase, the difficulties of determining the COMI are exacerbated. The ambiguity in national regimes over the determination of COMI has created conflicts between jurisdictions. As international banks are variously regulated in their respective jurisdictions, the binding nature of hard law is needed to effectively address their insolvency.

At present, neither the EU legal framework nor the Model Law specifically addresses the cross-border insolvency of international banks. As yet, there are still no international rules addressing the cross- border aspects of international bank insolvencies. This gap needs to be addressed in these frameworks beginning with international bank insolvency cases. The conflicts between jurisdictions in cross-border insolvency and the development of corporate groups in these frameworks would provide a strong foundation for the inclusion of international banks. Since the collapse of Lehman Brothers, global markets have remained unpredictable and unsteady. A more effective resolution of COMI may be a possible solution in assisting the international financial system to handle other bank insolvencies of similar magnitude and, in doing so, mitigate the effects of the next global financial crisis. These legal frameworks need to address the cross-border insolvency of banks by extending their scope and according their insolvency the attention that it deserves.