RELATION BETWEEN BANKRUPTCY AND CIVIL PROCEEDINGS IN TERMS OF SUBJECT MATTER AND TERRITORIAL JURISDICTION: THE NEED FOR ESTABLISHMENT OF COMMERCIAL COURTS IN FBIH (original) (raw)
Related papers
The bankruptcy law of the Republic of Serbia in times of crisis
2013
Bankruptcy proceedings have vital significance for the economy of a country. The number of initiated proceedings and their successful outcome represent a crucial indicator of the health of the economy. The economy in the Republic of Serbia has for a long time been stagnant, lagging behind many countries in Europe. For the last ten years, there have been two reforms performed in this area. The first reform radically changed regulations in order to change to modernize and improve process quality. The aim of the reform in 2009 was to eliminate shortcomings of the first one and to increase the efficiency of the bankruptcy proceeding. The progress was especially made in bankruptcy administrators’ training and professionalization. However, all the goals could not have been accomplished due to the conflict of the law regulations with the Constitution. The Law on Bankruptcy of Serbia has in its major part been coordinated with the EU regulations and it is able to respond challenges of econo...
European Scientific Journal, ESJ, 2015
The paper is focused on judicial theoretical approaches on legislation of the South-East countries of Europe, specifically in Kosovo. It regulates the issue of bankruptcy and re-organization of enterprises based on this process. This was because, according to our pretense, it is the most underdeveloped legislation in this part of the Balkans. There are no doubts that there are states in the South-East Europe that achieved results in the sphere of modernization of the legislation. However, it was regulated by business which includes business activities, registration, and operation of business enterprises. However, it is uncontested that the issue of bankruptcy remains a segment that is regulated in each country according to the perceptions and concepts they have related to their own legal systems. Apart from the differences identified by concrete, formal, procedural, and material disposals, the issue has become complicated when we talk about judiciary that proceeds with the process o...
Perspectives of Law and Public Administration, 2020
This paper considers certain aspects related to the application of the article 493 paragraph (1) letter (a) of the Criminal Procedure Code versus the insolvency procedure of the legal entity under the conditions of a distinction within the article on the interference with the insolvency procedure of the legal entity. The recent decision of the High Court of Cassation and Justice seems to have cleared the issue, but from our point of view the debates may be made from in the doctrine. The article does not aim so solve this issue, but it presents the three opinions on the application of article 493 paragraph 1 letter a of the Criminal Procedure Code. At jurisprudential level it seems that the intervention of the legislator on the interpretation of this article is not excluded. This orientation is based on the argument that the scope of the preventive measure made in the criminal trial is to prevent evading the criminal liability.
RESTRUCTURING PROCEDURES IN THE LAW OF BOSNIA AND HERZEGOVINA
Zbornik radova IX. Međunarodnog savjetovanja Aktualnosti građanskog procesnog prava – nacionalna i usporedna pravnoteorijska i praktična dostignuća, Split, 5. i 6. listopad 2023, 2023
This paper analyzes provisions of the laws of Bosnia and Herzegovina governing the models of restructuring debtors undergoing financial difficulties. Pre-bankruptcy proceedings, which are a novelty in our bankruptcy laws, are conducted by courts prior to opening and conducting a bankruptcy proceeding. The goal of pre-bankruptcy proceedings is the financial and operational restructuring of a debtor. The model of voluntary out-of-court financial restructuring, which exists under the laws of Republika Srpska, is also examined. The paper compares the adopted solutions to those provided in the Directive on Restructuring and Insolvency. An overview is given of the necessary changes and amendments that are in accordance with the Directive on Restructuring and Insolvency. The goal of this paper is to point out that restructuring models can be successful and practicable only if there is an efficient legislative framework dealing with bankruptcy.
Comparative bankruptcy procedural law aspects of cross-border and domestic avoidance action
The analysis starts from art. 16 EC 848/2015 and the consolidated case-law of the CJEU on the application of lex fori concursus and lex fori contractus in cases of avoidance action in insolvency proceedings. Secondly, the text deals with the similarities and differences about the procedural implementation of the above-mentioned action within the Italian and Latvian legal systems. The scientific study deals with the cases of avoidance action and the timeframes within which the administrator of the insolvency proceedings may propose the legal measure mentioned above. Subsequently, the study links the case law of the CJEU to the implementing problems concerning a possible fraud against creditors and it will examine, on the one hand, the past judgements of the court, on the other the repercussions it used to have whenever it would take into consideration. Finally, the research deals on the recent case C54/2016 in which the CJEU, appointed by the Venice Court in a similar case, declares the implementing requirement. Considering the sentence and the referral, the conclusions are concerned to delimit the scope of application and implementing area of the combined provision referred to in art. 7 and 16 EC 848/2015 and to provide a forecast for the problems arising from the laziness of the European legislator. Introduction This scientific inquiry is inspired by a litigation occurred at the court of Venice concerning an avoidance action claimed by the administrator of a bankrupt company against another company. Before the declaration of insolvency about the company above, the two legal entities, both Italian, entered into a trade agreement, which, though not having any international character, was subject to British law according to EU 593/08. In general, in accordance with the provision of art 13 EU 1346/00, now entirely transposed within art. 16 of the new regulation on cross-border insolvency 848/15, the commercial agreement de quo and the related payment by the insolvent company, at that time still in bonis, would be subject to the rules of British law and therefore not subject to the avoidance action claimed in a different State for any other procedural and substantive reasons than those of the state referred to in the lex fori contractus. The Venetian court has decided, in response to this question, to refer a referral in accordance with the principles of the TFEU to the Court of Justice in order to put an end to this lengthy procedural problem.
Bankruptcy and International Arbitration: Some Comparative Snapshots
The article contains the comparative snapshots of national laws and courts’ decisions which deal with the effects of bankruptcy on international arbitration. These effects are severe and they may affect the arbitrability of a dispute, the conduct of arbitration, or the validity of an arbitration agreement. They stem from the conflict of the underlying policies of the two procedures: bankruptcy and arbitration. While arbitration is based on the principle of parties’ autonomy and privity, and it supposes the decentralization of the forum, bankruptcy proceedings are judicial, collective, and centralized. This conflict is usually left to be resolved at the national level, which results in the lack of uniformity of solutions at the international level, and consequently there is no predictability for the parties involved in international arbitration. The author provided an overview and a critical analysis of the determination of the law applicable to the effects of bankruptcy on arbitration and the comparative analysis of several specific effects.
Acta Universitatis Carolinae. Iuridica, 2020
This article deals with the legal regulation governing the ascertaining of applicable law under the Insolvency Regulation while focusing on the provisions of Articles 3 and 7 and classifying this legal regulation from the perspective of private international law. The part dedicated to the provisions of Article 3 as a norm of international insolvency law introduces the concept of COMI-a basis to determine the jurisdiction of the court that should commence insolvency proceedings. Furthermore, the essential case-law of the CJEU and Czech courts addressing COMI is presented. Regarding Article 7, an opinion is expressed that the legal regulation contained in Article 7 constitutes a conflict-of-laws rule for which the applicable law is determined by the location of the court that opened the given insolvency proceedings. At this point, a fundamental connection is seen between the legal regulation contained in Articles 7 and Article 3. In addition, an opinion is expressed that the legal regulation contained in the Insolvency Regulation leads to the unity of international court jurisdiction and the determination of applicable law, which can be seen as the current trend in European private international law.
International Journal of Research, 2021
In connection with the bankruptcy issue, in this case PT. Inti Kapital Sekuritas, formerly known as PT. Andalan Artha Advisindo Sekuritas, for filing a bankruptcy application made by two creditors namely Ghozi Muhammad and Azmi Ghozi Harharah who are customers of PT. Inti Kapital Sekuritas. The court has handed down the previous decision number 08/Pdt.Sus/Pailit/ 2015/PN.Niaga.Jkt.Pst, because they have more than one debt that is due and can be collected in accordance with law number 37 of 2004 concerning bankruptcy and postponement debt payment obligations, article 2 paragraph (1) jo. Article 8 paragraph (4) which regulates the conditions for bankruptcy as follows, "A debtor who has two or more creditors and does not pay in full at least one debt that is due and can be collected, is declared bankrupt by a court decision, either on his own request or at the request of one or more creditors". Due to no further legal remedies by the securities debtor, the decision number 08/Pdt.Sus/Pailit/2015/ PN. Niaga.Jkt.Pst has permanent legal force (inkracht). Respondent or securities debtor then submits a request for reconsideration of the court decision which has permanent legal force, by taking external legal remedies, namely reconsideration. The research method used in this thesis research is descriptive analysis, with the type of normative legal research, namely to examine legal norms related to bankruptcy petition decisions through literature study, research in terms of statutory regulations and also their elaboration and explanation of procedures and bankruptcy provisions and postponement of debt payment obligations. The