Research On The Jurisdition And Applicable Law In The Insolvency Of Cross-border Banks

In recent years, the financial storm throughout the whole world has led a large amount of financial institutions to be failure. This thesis therefore pays attention to the legal issues regarding the insolvency of cross-border banks which belong to the transnational insolvency area. It especially focuses on the jurisdiction and applicable law of insolvency of cross-border banks.This thesis includes four chapters.Chapter One, with two sections in it, offers a general view in the insolvency of cross-border banks. The first section refers to the basic conception of transnational insolvency and insolvency of cross-border banks, as well as the different issues about insolvencies between cross-border banks and common companies, in order to draw attention to the particularity of legal study on insolvency of cross-border banks. This section also makes comment on its particularity by discussing the far more serious adverse effect of cross-border banks'insolvency, the special supervisory rules, the special insolvency procedure and the special liquidation rules for creditors'rights.The second section introduces the general theory and principle referring to the insolvency of cross-border banks, including Universality Doctrine, Territoriality Doctrine, Single-entity Doctrine and Separate-entity Doctrine.Chapter Two, with three sections in it, studies in jurisdiction over the insolvency of cross-border banks. The first section refers to the significance of insolvency jurisdiction and the fact that the jurisdiction conflict appears in the insolvency of cross-border banks. In this section, the criteria of jurisdiction over the insolvency of cross-border banks in the international society, including the place of operation standard, residency place standard and the property location standard are introduced. Relevant laws, regulations and cased are analyzed in order to support the point. The second section studies in the cause of jurisdiction conflict, indicating that the cause arises from the diversity of bank insolvency system, combat of profit and absence of an internationally uniform rule. The third section sets forth several paths to solve the jurisdiction conflict, such as insisting international cooperation and coordination, taking the idea of legal comity doctrine and perfecting domestic insolvency laws.Chapter Three, with three sections in it, works on the applicable law in the insolvency of cross-border banks.The first section refers to the applicable law of off-set right. After comparing the attitude and applicable rules on off-set right in several different countries,this section makes a conclusion that the enforcement of off-set right is significantly affected by different laws. The second section discusses the conflict of deposit insurance arrangement under Single-entity Doctrine and Separate-entity Doctrine. The third section analyzes the applicable law in liquidation order of creditor's right and compares the differences in the United States, British and Russia.Chapter Four, with two sections in it, refers to the exploration for the legislation of cross-border banks insolvency in China. The first section introduces and analyzes the current legal system of bank insolvency in China, indicating that there are three defects in it. The first is the general absence of insolvent rule on cross-border banks. The second is the unclear stipulation in jurisdiction over the insolvency of cross-border banks. The third is the lack of applicable law in the insolvency of cross-border banks.Particularly, this thesis puts forward three specific questions in the part of definitude of jurisdiction over the insolvency of cross-border banks in China and raises unique comment.Finally, this thesis draws a conclusion that China shall make rules on jurisdiction and applicable law related to the insolvency of cross-border banks as soon as possible, in order to remove the legal barrier of its occurrence in the country.