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This chapter argues that emerging economies – and more generally any jurisdiction – should facilitate the choice of insolvency forum. Consistently with a pioneering proposal suggested by Professor Rasmussen, it is argued that this choice of insolvency forum should be facilitated ex ante. Thus, in addition to providing a more desirable solution for debtors and creditors in the event of financial distress, the ex ante choice of insolvency forum would serve as a mechanism to facilitate firm’s access to finance and the promotion of economic growth. Alternatively, if the insolvency forum cannot be chosen ex ante, at least it should be facilitated ex post. Regardless of the solution eventually adopted, this chapter explains that this greater level of freedom for the choice of insolvency forum requires certain changes to the rules governing cross-border insolvency and particularly those established in the UNCITRAL Model Law on Cross-Border Insolvency. Moreover, it requires the adoption of certain rules to prevent debtors from opportunistically choosing or shifting the insolvency forum at the expense of the creditors.
This book explains how and why insolvency law in emerging economies needs to be reinvented. It starts by examining the importance of insolvency law for the promotion of economic growth as well as the similarities and divergences in the design of insolvency law around the world. The central thesis of the book is that insolvency law in emerging economies fails to serve as a catalyst for growth. It is argued that this failure is mainly due to the design of an insolvency legislation that is not tailored to the market and institutional environment generally existing in emerging economies. The book also provides a critical analysis of the design of insolvency law in many advanced economies where the insolvency system has proven to be unattractive for debtors, creditors or both. Therefore, in addition to suggesting a new insolvency framework for emerging economies, this book ultimately invites readers to rethink insolvency law.
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