Vol 3 (2006) - Issue 6

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Roman Tomasic (ed.), Insolvency Law in East Asia

Western civilisation has always found a source of inspiration in the East, from where the word ‘orientation’ is derived. The very first contacts came through the intermediary of commercial links via the Middle East and Central Asia, bringing in their wake not just items of cross-border trade, but the cross-fertilisation of cultures.
It is argued by historians whether the West would have reached its economic zenith quite so speedily without the importation of discoveries and inventions, such as gunpowder, silk, paper, ink and the art of printing, first pioneered in the East. These commercial links have continued to the present day with trade between European and Asian countries, especially with the East Asian economic giants including China, Japan and Korea, economic entrepots such as Hong Kong, as well as other nations around the Pacific Rim, reaching important levels and involving substantial amounts of cross-border investment. In an era when economic instability operates on the world markets, there is a need in the West to understand how the legal systems operate in these countries, not merely from the business perspective, but in a wider legal context. Access to these legal systems is not easy, as translation is often the only means of acquiring an insight into legal systems with quite diverse historical, political and social roots. The number of publications in this area is growing, although still limited in many sectors, including in insolvency, which is all the more reason to welcome the publication of this book.
As the title suggests, its remit is the exposition of insolvency laws in East Asia, defined widely for the purposes of this text to include fourteen jurisdictions in East Asia proper, South-East Asia and Australasia, including Japan, Korea, China, Taiwan, Hong Kong, Vietnam, Laos, Thailand, Malaysia, Indonesia, the Philippines, Singapore, New Zealand and Australia. The aim of the text is to provide a comparative view of the framework for insolvency law in these countries, together with a discussion of common themes, experiences and responses
to prevailing changes in global insolvency law and practice. To that end, the first chapter provides a rationale for the text, whose aim is stated as not just providing an overview of Asian insolvency systems, but exposing the particular pressures on these jurisdictions to reform insolvency laws following various financial crises, the 1997 Asian Crash being the direct impetus for many of the developments in the affected countries. This chapter also outlines the seminal role of the Asian Development Bank in supporting reform initiatives, in part through the production of good practice standards and provision of technical aid necessary for many of the developing jurisdictions within the region.
The body of the work then analyses the legal and regulatory frameworks in each jurisdiction in turn. To that end, each chapter has been contributed by a person closely associated with that country, most often a local practitioner or academic expert specialising in the laws of that country. Topics covered under the overall insolvency rubric in these chapters include an introduction to the relevant legal system and culture, the rules governing personal insolvency (where distinguished from proceedings covering commercial debtors and legal entities), an outline of relevant procedures, corporate insolvency rules (where separate personal and corporate systems exist), details of rescue regimes including schemes of arrangements and reconstructions, an account of winding up and liquidation rules, the position and powers of insolvency personnel, procedural aspects governing enforcement over assets and the constitution of security, civil and criminal liability as well as, in tribute to the globalisation of insolvency, the existence of any rules governing cross-border instances.
The topics covered within each chapter attempt to provide answers to the questions international and comparative lawyers, whether in practice or in academia, are most likely to ask about the organisation of insolvency matters. Of necessity, the text is a compendium of outlines of each topic in relation to all fourteen jurisdictions.