1. Introduction
Downfall of a shipping company would, same as other companies, give rise to insolvency proceedings against its assets, what makes it different is the involvement of maritime issues. As is known to all, shipping industry is capital-intensive, and to shipping companies, vessels constitute a large portion of their assets. The thing is, when shipping companies become insolvent, their vessels may also get involved in maritime claims, which are highly likely to be raised in other jurisdictions given the mobility of ships. In this context, the insolvent shipowner, especially its vessels are subject to both insolvency proceedings and arrest proceeding under bankruptcy law and admiralty law of different jurisdictions respectively. Compared to laws in other fields, admiralty laws are substantially similar internationally[1], and admiralty laws provide for maritime claimants to arrest the vessel to get their claims satisfied in priority over the proceeds of the vessel arrested, while bankruptcy law regards vessels as debtor’s estate[2], and the proceeds of insolvent assets ought to be distributed following the sequence of payment stipulated in applicable bankruptcy law.
Therefore, although insolvency proceedings would generally have effect on all insolvent assets including vessels around the world, difficulties may arise if some of its vessels have been arrested to secure maritime claims in other jurisdictions, given that “the decisions of a court, exercising admiralty jurisdiction pursuant to an arrest in rem” also “receive international recognition”[3]. And there is no absolute answer to the question whether a maritime claim should be satisfied against the arrested ship in preference to the defendant’s other creditors in this context. It is essentially an issue up to the perspective of domestic law or practice on whether or not the insolvency proceeding and its decision would be recognized by the arresting jurisdiction. Accordingly, there would be two basic possible results. Say that an arresting jurisdiction does not recognize foreign bankruptcy proceedings, what it would do is to continue with domestic proceeding disregard the fact that the vessel is involved in foreign insolvency proceedings. Oppositely, the court that arrested the vessel would grant release and leave the vessel at disposal of the insolvency proceeding. There is also a mediate way that tries to seek balance between the jurisdictions of competent courts. Either way to choose, each jurisdiction has its own consideration, for example, the weight of different rights for which creditors seek protection.
To clarify the relation between cross-border insolvency and ship arrests, this work focuses on the scenario where the vessel is subject to simultaneous proceedings under two systems. And a comparative analysis is conducted based on the regulations and practice of two jurisdictions, England and China. Two scenarios will be discussed. Scenario 1: ship arrest proceeding in England and Wales with parallel foreign insolvency proceedings, and scenario 2: China is the arresting jurisdiction and the debtor is involved in insolvency proceeding abroad. For both scenarios, the effect of cross-border insolvency on ship arrest proceedings will be discussed based on the rules and court practice of these two jurisdictions, and emphasis will be put on whether or not these two jurisdictions recognize foreign insolvency proceedings, the way they deal with domestic ship arrest proceedings, is it to stay and release the ship arrested or to continue with domestic proceeding despite insolvency issue, and also the law applicable to these proceedings.
2. Maritime Security Interests and Cross-border Insolvency
The interaction between cross-border insolvency and ship arrests involves conflict of jurisdictions and both regimes have their interests to protect, it can be imagined that these interests are difficult to weight, not to mention, compare, and different states may have their preference in this regard.
2.1 Different Legislative Purposes
Bankruptcy law and admiralty law have different purposes, this is the fundamental reason of the conflict between cross-border insolvency and ship arrests.[4]The primary purpose of bankruptcy law is to reach fair compensation among creditors through liquidation of all the defendant’s assets. And this is why separate and previous payment made by the debtor to some creditors would be deemed as against the principle of equity, and the administrator is entitled to recover what has been paid. In this regard, bankruptcy laws around the world more or less restrict improper payment so that the rights of all creditors to get reasonable compensation can be protected. To creditors, taking part in insolvency proceeding can guarantee that they get fair distribution from the proceeds of the insolvent assets, especially when the proceeds of insolvent assets are not enough for all claims. In comparison, ship arrests under admiralty law aims at securing the satisfaction of special maritime claims, for example, maritime liens. And although different states may take it differently with regard to the priority of various maritime claims, maritime claimants that get the vessel arrested can generally to certain extent be paid in priority.[5] This is why maritime claimants would like to pursue vessels of their debtor around the world till they find the most favorable state to arrest them. However, prior protection of the rights of maritime claimants would bring difficulties to insolvency proceedings.
2.2 Entitlement of Different Jurisdictions
Due to the mobile nature of vessels,[6] the conflict between insolvency and ship arrests is especially outstanding in cross-border maritime insolvency. In a cross-border maritime insolvency case, courts where the debtor’s domicile or center of main interests (COMI) is located, and even where its assets are located can all exercise jurisdiction under bankruptcy law, besides, admiralty laws entitle arresting courts to exercise jurisdiction on the merits of the case.[7] From the perspective of maritime claimants whose domicile is outside the COMI of the insolvent company, ship arrests could be the easiest and most possibly the most reliable way to get indemnified. Instead of taking part in foreign insolvency proceedings under the applicable law not familiar to him, a maritime claimant could choose to arrest the vessel wherever convenient to him under admiralty law. However, from the perspective of insolvent debtor, it would be troublesome to cope with ship arrests around the world. Of course, an insolvent company wishes to deal with all its debts once and for all through insolvency proceedings. Therefore, different stakeholders would turn to the most favorable courts taking into account their own benefit, and consequently, the ship will subject to the jurisdiction of the court arresting it and also the jurisdiction of the court administering the insolvency issue. Concurrent entitlement of courts in different jurisdictions would inevitably result in conflict of jurisdictions.
Being part of or sometimes the main part of the insolvent assets and the object to which rights in rem attach, vessels may be subject to simultaneous proceedings under two systems, the attitude of arresting jurisdiction towards foreign insolvency proceedings would to a large extent affect the interests of creditors. It can be said that different state practice is the result of their decision on how to reconcile above conflict.
3. English Approach
3.1 Action in Rem
Action in rem is a proprietary action brought against ships. Under English law, a ship can be arrested once proceedings have been commenced against it,[8] ship arrests provide pre-judgment security for specific claims[9] and enable the claimants to get their claims enforced. As per Lord Watson in The Henrich Björn,[10] action in rem is “a proceeding directed against a ship or other chattel in which the plaintiff seeks either to have the res adjudged to him in property or possession, or to have it sold, under the authority of the Court, and the proceeds, or part thereof, adjudged to him in satisfaction of his pecuniary claims.”[11] According to section 21 of the Senior Courts Act 1981, actions in rem available in English law can be divided into three categories, the first being possession or ownership-related claims (see section 21(2) of the Act), the second being claims secured by maritime liens (see section 21(3) of the Act) and the third being claims secured by statutory liens (see section 21(4) of the Act). In ship arrest, English law can be said to be quite claimant-friendly, for not only that it requires no prima facie case to arrest a ship,[12]but also, even if the arrest was applied wrongfully, or in another words, the shipowner was found not liable after arrest, the remedies available for the owner is limited, he can only claim damages thereafter if he can prove “malice” or “gross negligence” on the part of the arresting party. As per Mr. Justice Teare in The Alkyon,[13] “English Admiralty law does not require a claimant who wishes to arrest a vessel to provide a cross-undertaking in damages in order to obtain a warrant for the arrest of a vessel”[14] and that “where an arresting party acted in bad faith or with such gross negligence as implies malice he was liable for any damage caused by a wrongful arrest.” [15]Of course, it also has the common benefit of ship arrests under admiralty law that commencement of proceedings in rem would get the arresting party into the position of a secured creditor that will be paid in priority to other creditors of the debtor,[16] a shipowner in the context.
3.2 Recognition of Foreign Insolvency Proceedings
As has been widely discussed by commentators, it is not easy to “fit the Admiralty proceedings into the legislative language of the relevant statues which regulate insolvency proceedings.”[17] In dealing with the interaction between admiralty proceedings, in particular ship arrests, and insolvency proceedings, English law gives no absolute precedence of either admiralty proceedings or insolvency proceedings.
UK adopted UNCITRAL Model Law and it “shall have the force of law in Great Britain” with certain modifications.[18] In its application in UK, once an insolvency proceeding in the debtor’s COMI got recognized, stay or suspension of local proceedings against the foreign debtor and his property is required (see Article 20.1).[19] And in accordance with Article 20.2 of the Cross-Border Insolvency Regulations, the effect of foreign insolvency proceeding after recognition, namely stay and suspension of relevant proceedings, would be the same as domestic insolvency proceedings.[20] Therefore, in the context of an insolvent shipowner, it would be assimilated to “a winding-up order under the Insolvency Act 1986”.[21] In terms of winding-up proceedings, section 130(2) of the Insolvency Act 1986 stipulates that:
“When a winding-up order has been made…no action or proceeding shall be proceeded with or commenced against the company or its property, except by permission of the court and subject to such terms as the court may impose.”[22]
As in Pan Oceanic Maritime Inc[23], the court recognized an American insolvency proceeding under the Cross-Border Insolvency Regulation and granted a stay of domestic proceedings with regard to enforcing securities.[24] And also in Re Australian Direct Steam Navigation Co,[25] the Court of Chancery confirmed that “the proper mode of enforcing a maritime lien on a vessel belonging to a company which has been ordered to be wound up, is by a proceeding in the winding-up and not by a proceeding in rem in the Admiralty Court”.[26]Therefore, it can be reasonably inferred that winding-up proceedings would generally prohibit arrest of the insolvent company’s ships, yet it is not definitely the case, action in rem would under certain circumstances give an “end-run around insolvency laws”.[27]This will be further addressed below, due to the effect of Brexit, the automatic recognition under the EU Regulation on Insolvency Proceedings has fallen away,[28] this paper would not pay much attention to this part which used to take almost half of the discussion on this topic.
3.3 Secured Creditor’s Rights not Affected
In essence, ship arrests are covered by proceedings against the foreign debtor and his property under Article 20.1. However, Model Law allows the enacting states to refer to relevant provisions of their domestic law as to “exceptions, limitation, modifications or termination in respect of the stay and suspension”.[29] English Law exercised such discretion, and Article 20.3 of the Cross-Border Insolvency Regulations stipulates that the stay and suspension referred to in paragraph 1 “does not affect any right to take any steps to enforce security over the debtor’s property”.[30] This means that protection is available for priorities given by the host jurisdiction and the secured status under the law thereof should not be affected.[31] As per Mr. Justice Briggs in Cosco Bulk Carrier Co Ltd v Armada Shipping SA,[32] “commencement of a winding-up does not in general prevent a secured creditor from realizing his security.”[33] To which, Birghtman L.J. gave a vivid reasoning in Re Aro Co Ltd.[34] that “a secured creditor is in a position where he can justly claim that he is independent of the liquidation, since he is enforcing a right, not against the company, but to his own property.”[35] Therefore, in the context of ship arrests, as long as an arrest or a right in rem with secured status, it would be upheld against an English insolvency proceedings, so would it “survive” the recognition of foreign ones.[36]
Notably, the expression of “does not affect” in Article 20.3 could be reasonably inferred as indicating the underlying precondition of this exception that such secured status must be obtained before recognition of foreign insolvency proceedings.[37] So, the problem that remains is what makes a secured creditor entitle of the right under Article 20.3. Among the rights in rem under English law, maritime lien is no doubt special, it attaches to the ship ever since the cause of action arises,[38] and travel with the ship wherever she is, and can be enforced against the ship even though it has been sold to a good faith purchaser.[39] One another special rights over the ship is mortgage, it is a principle of mortgage law that a mortgage creditor should be able to realize his proprietary right prior to other creditors.[40] Therefore, it can be concluded that mortgagors and creditors secured by maritime liens should prevail against foreign insolvency proceedings under English law. [41]
The one last category of rights in rem, those secured by statutory liens, its interaction with cross-border insolvency is relatively less straightforward, while it is probably in practice the grounds for the majority of cases judging from the sum of claim. Unlike maritime liens, statutory liens come into existence on commencement of in rem proceedings which is up to when the claim for is issued (see The Monica S[42]). So, for those creditors secured by statutory liens under English law to proceed with enforcement, they need to issue their claim and obtain secured status before foreign insolvency proceedings get recognized.[43]
In rem proceeding can be an exception to insolvency law,[44] but it is partly up to the issue of timing. Therefore, it can be said that in rem claimants secured by mortgage and maritime liens, and others with a mere right in rem after they have issued the claim form, would prevail against recognition of foreign insolvency proceedings.[45]
4. Chinese Approach
4.1 Attachment
Arrest of ship is stipulated in Chapter III of the Special Maritime Procedure Law of the People’s Republic of China (SMPL). In accordance with Article 21, maritime claimants can apply for maritime courts to arrest or attach ships as pre-judgment security for their claims,[46] including claims for salvage payment, wages of crew, general average and other 19 categories.[47] As to the circumstance under discussion, ships that belong to the liable shipowner, not just the ship involved in specific dispute, may be arrested for the security interests of maritime claimants.[48] Different from common law, proceedings in China are brought in personam, claimants cannot arrest ships and get their claims enforced by action in rem. Therefore, the claimant can arrest the ship as security, but needs to bring a suit or apply for arbitration against the shipowner to enforce his claim. As per Article 19 of the SMPL, after arresting a ship, the claimant can start litigation or arbitration procedure for a maritime court or tribunal to hear the case, and it is special about admiralty law that arrest of ship can entitle the arresting court jurisdiction on merits of the case upon application of the claimant.[49] Of course, such jurisdiction would give way to those specified in litigation jurisdiction agreement or arbitration agreement. What’s more, the arrested vessel may be sold by the arresting court upon application through auction if no guarantee is provided by the defendant within the time limit of arrest (30 days) and it is not proper to keep the ship under arrest.[50]
4.2 No Recognition of Foreign Insolvency Proceedings
Now consider the situation where the shipowner becomes insolvent, and insolvency proceeding and arresting proceeding of the same debt are issued under two jurisdictions, to what extent will foreign insolvency proceedings affect ship arrests in China? Regarding cross-border insolvency, Article 5 of the Enterprise Bankruptcy Law of the People’s Republic of China stipulates that “the procedures for bankruptcy which have been initiated according to the present Law shall have binding force over the assets of the relevant debtor beyond the territory of the People’s Republic of China.” This confirms that Chinese insolvency proceedings have binding force over the debtor’s foreign assets. And the second paragraph of the same article provides the recognition and enforcement of the “legally effective judgment or ruling made by a foreign court” that involves assets within Chinese territory.[51] On one hand, such recognition and enforcement would be quite limited if we take a look at the requirements set thereby. Before granting confirmation and enforcement, Chinese courts would examine the application made by the debtor according to relevant international treaties or if no such treaties, examine based on the principle of reciprocity, and confirmation and enforcement will not be granted if it violates “the basic principles of the laws of the People’s Republic of China”, “damage the sovereignty, safety or social public interests of the state” or “the legitimate rights and interests of the creditor” within Chinese territory.[52] On the other hand, there is no mention of recognizing foreign insolvency proceedings. Although it is argued by commentators that this provision could be interpreted as including recognition of insolvency proceedings, there is not yet any legal interpretation or cases for its support. And also based on its answer to the questionnaire if CMI, China Maritime Law Association confirmed that there is no provisions regarding recognition of foreign insolvency proceedings under Chinese law.[53] What’s more, even if there is any, the conditions set in this provision would also make it rare for Chinese courts to recognize as such. Consequently, whenever foreign insolvency proceedings commence, claims under Article 21 of the SMPL can always get enforced against the insolvent company’s ships.
Take the case of Hanjin Shipping as an example, representative of the debtor in question applied for a series of states to recognize Korean insolvency proceeding, and enacting states of the Model Law did provide bankruptcy protection, and certain remedies obtained from others. Although no such application was made to Chinese courts and Hanjin even withdrew its insolvency application before Chinese court could hear the case.[54] The possibility for Chinese courts to recognize Korean insolvency proceedings has been widely discussed by Chinese commentators after this assuming that such application was also made in China. The answer to this question is quite crucial to ship arrest proceedings in China because according to Article 19 of Chinese Enterprise Bankruptcy Law, if an application for bankruptcy has been accepted by Chinese courts, then measures for security over the debtor’s assets shall be lifted.[55]In this context, if the Korean insolvency proceeding gets recognized by Chinese court, then its effect will be the same as Chinese insolvency proceeding, which would of course stop the pre-judgment security, ship arrests. However, the commentators agreed that it would be quite difficult for such recognition to be granted in China.[56]The reasoning for this is direct. At first, China does not observe the Model Law as Korea, and as has been discussed above, Chinese law only allows recognition under certain conditions. While, in cross-border insolvency cases involving China and Korea, there is no treaty available, the treaty on judicial assistance between China and Korea[57]is not about cooperation in cross-border insolvency, which means China was not obliged to provide bankruptcy protection for Hanjin Shipping. Secondly, the principle of reciprocity would not apply considering that no such support has been given by Korea conversely.
Actually, recognition of foreign insolvency proceedings by Chinese courts is quite limited in practice. There is no precedent in support of recognition and enforcement of foreign insolvency proceedings under treaty obligations of Article 5.[58] So, it is highly likely that maritime claimants can apply for Chinese courts to arrest a ship and through which get remedied notwithstanding foreign insolvency proceedings.
5. Comments on Different Approaches
In dealing with the interaction between cross-border insolvency and ship arrests, there is no definitely right or wrong in implementing certain approach. It is always a question of preference and choice between the interests of different creditors. If a state treasures the importance of bankruptcy law, it would recognize foreign insolvency proceedings and other proceedings against the same defendant or its assets would give way to insolvency, while if it emphasizes the rights of maritime claimants and the particularity of ship arrests, it would make sure the arresting party get remedied in priority notwithstanding the commencement of foreign insolvency proceedings. Based on above analysis, neither English law nor Chinese law take such extreme approaches. In general, English law approach is closer to internationalism, while Chinese law approach is closer to territorialism.
By recognizing foreign insolvency proceedings and giving them precedence over domestic proceedings, the advantage of English law approach is that it helps with circumventing the problem raised by parallel proceedings and it meets the requirement of international cooperation and comity. In addition, this would make it meaningless for the insolvent company to divert its properties so as to survive the harshness of certain jurisdiction. While, just as a coin always has another side, recognition of foreign proceedings also means that a state other than that of the debtor’s COMI have to give up its power in adjudication to some extent. What’s more, although it can be argued that international recognition of insolvency proceedings would guarantee fair compensation if we take all creditors as a whole, this would not be the case individually. Assuming a creditor who is entitled right of priority under its domestic law, while such secured status is not recognized by the law of the COMI of the debtor, joining the main proceeding would deprive him of superiority. Not to mention that local claimants would have to get remedied through foreign proceedings, this could not be a good news to domestic claimants. Reasonably, English law on one hand adopts Model Law for the purpose of international cooperation, and on the other hand gives due consideration to the particular concerns of maritime industry[59]and allows ancillary proceedings to protect the interests of domestic claimants. What’s worth mentioning is that such exceptions are not given casually, only those secured and in the context of ship arrests, only claims secured by maritime liens and mortgages are exempted, and it is clear that claims secured by statutory liens would not succeed in overriding insolvency unless it is prevailing in terms of time. So, it can be said a good practice in balancing cross-border insolvency and ship arrests.
In comparison, Model Law has no application in China, and in the interaction between cross-border insolvency and ship arrests, the uniformity under Model Law would have no effect on Chinese proceedings. Chinese law would only recognize foreign insolvency proceedings under special circumstances considering the requirements of recognition under Chinese law. Although it has been addressed by commentators that Article 5 of the Enterprise Bankruptcy Law indicates that China is now more open in seeking international cooperation in cross-border insolvency, such a general provision is not enough to support such a judgement. The de facto no or rare recognition of foreign insolvency proceedings can hardly be taken as positive in cooperation and comity. However, this is really helpful in protecting the interests of domestic creditors to a large extent. Similar to English approach, admiralty law is also in the position of primacy over maritime assets in China, but it is worth mentioning that they are different in the extent to which maritime claims can be protected. Chinese approach does not distinguish maritime claims. As has been mentioned above, general claims are different from maritime liens and mortgages. Creditors under mortgage contracts and those of maritime liens are entitled with a subsisting proprietary right in the vessel,[60]and securing their claim against cross-border insolvency would not result in any unfair advantages over other creditors.[61]However, should other general creditors be placed at the same position, especially the holders of some contractual claims who are in essence not different from other creditors of the insolvent company, it may be unfair to other non-maritime creditors. Considering that it is the tendency of state practice to coordinate the tension between cross-border insolvency and ship arrests and distinguish different maritime claims. It is advisable that China also introduce the scheme of main proceedings and ancillary proceedings so as to be in keeping with the requirement of international cooperation. After all, this would not result in prejudice against domestic claimants who are entitled rights of security given that ancillary proceedings can also provide necessary protection.[62]In addition, it is also advisable to make necessary clarification as to the extent of such special protection instead of lumping together all maritime claims.
6. Conclusion
The interaction between cross-border insolvency and ship arrests originates from the special insolvent asset, ships. In general, ship arrests would intervene the queue of creditors waiting for payment from the insolvent shipowner, and after enforcement of maritime claims, it is possible that the insolvent shipowner’s non-maritime creditors get nothing. Therefore, the relation between cross-border insolvency and ship arrests is crucial to the balance between the rights and interests of all creditors. While, when the conflict arises, states would take different approaches to retain insolvent assets in their territory for domestic adjudication. This paper discusses the English law position and Chinese law position in this context and tries to compare their practice. Among which, English approach can be said to be good practice in balancing the requirement of international cooperation and the necessity of protecting domestic maritime claimants. Accordingly, it is suggested that necessary adjustments should be made to Chinese insolvency law and due consideration given to the tendency of recognizing foreign insolvency proceedings while protecting the rights and interests of certain maritime creditors who are entitled secured status under maritime law.
注释：
[1]Edward Keeth, ‘Problems in the Liquidation and Reorganization of International Steamship Companies in Bankruptcy’ (1985) Tulane L Rep 1239.
[2]Melissa K S Alwang, ‘Steering the Most Appropriate Course between Admiralty and Insolvency: Why an International Insolvency Treaty should Recognize the Primacy of Admiralty Law over Maritime Assets’, (1996) 64 Fordham L Rev 2613, 2615.
[3]Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 45 (2d ed. 1975) (describing admiralty law as an existing valid law prior to any national legislation).
[4]Mohammud Jaamae Hafeez-Baig, ‘Navigating the Waters between Admiralty and Cross-border Insolvency: A Comparison of the Australian, German and French positions’, (2018) Lloyd’s Maritime and Commercial Law Quarterly, 97, 127.
[5]James Allsop, ‘Security Interests in Ships’, in D Attard(ed), The IMLI Manual on International Maritime Law (Oxford University Press, 2014), vol II, 152, 153. See also Mohammud Jaamae Hafeez-Baig, 99.
[6]Supra n 1, 1242.
[7]Article 7 of the International Convention on Arrest of Ships 1999.
[8]Supra n 4, 114.
[9]See the list of claims in section 21 of the Senior Courts Act 1981.
[10]The Henrich Björn (1886) 11 App. Cas. 270.
[11]Ibid., 276.
[12]Civil Procedure Rules.
[13]The Alkyon [2018] EWHC 2033 (Admlty).
[14]Ibid., [10].
[15]Ibid., [18].
[16]Andrew Tettenborn, ‘International Insolvency Law: Its Impact on the Arrest of Ships’, (2017) 23 Journal of International Maritime Law, 266.
[17]D R Thomas, Maritime Liens (Stevens & Sons Ltd, 1980), [99]. See also Supra n 2.
[18]Article 2 of the Cross-Border Insolvency Regulations 2006.
[19]Article 20.1 of the Cross-Border Insolvency Regulations 2006.
[20]Article 20.2 of the Cross-Border Insolvency Regulations 2006.
[21]Article 20.2 (a).
[22]Section 130(2) of the Insolvency Act 1986
[23]Pan Oceanic Maritime Inc [2010] EWHC 1734 (Comm).
[24]Ibid.
[25]Re Australian Direct Steam Navigation Co (1875) L.R. 20 Eq.
[26]Ibid., 325.
[27]Baris Soyer, Andrew Tettenborn, Ship operations: New Risks, Liabilities and Technologies in the Maritime Sector (informa law from Roughledge, 2021), 156.
[28]‘Recognising UK Insolvency Proceedings in the EU-Where does the UK Stand Post-Brexit?’ (ASHURST, 29 Jan 2021) https://www.ashurst.com/en/news-and-insights/insights/recognising-uk-insolvency-proceedings-in-the-eu accessed 28 Sep. 2021.
[29]Article 20.2 of UNCITRAL Model Law on Cross-Border Insolvency.
[30]Article 20.3(a) of the Cross-Border Insolvency Regulations 2006.
[31]Supra n 16.
[32]Cosco Bulk Carrier Co Ltd v Armada Shipping SA [2011] EWHC 216 (Ch).
[33]Ibid., [49].
[34]Re Aro Co Ltd [1980] Ch. 196.
[35]Ibid, 204. See also In Re David Lloyd & Co (1877) 6 Ch.D. 339; In Re Wanzer Ltd. [1891] 1 Ch. 305.
[36]Supra n 16.
[37]Supra n 27, 152.
[38]Supra n 27, 149.
[39]Martin Davies: ‘Cross-Border Insolvency and Admiralty: A Middle Path of Reciprocal Comity’, (2018) 1 The American Journal of Comparative Law 101. See also The Morica S [1968] p.741 and The Helene Roth [1980] Q.B. 273.
[40]‘Core Principles for a Mortgage Law’ (EBRD)
[41]Supra n 16. See also Supra n 34.
[42]The Monica S [1967] 2 Lloyd’s Rep 113.
[43]Supra n 16.
[44]Supra n 27, 149.
[45]Supra n 27, 150.
[46]Supra n 4, 99.
[47]Article 21 of the Special Maritime Procedure Law of the People’s Republic of China.
[48]Article 23 of the Special Maritime Procedure Law of the People’s Republic of China.
[49]Article 19 of the Special Maritime Procedure Law of the People’s Republic of China: “Where the relevant maritime dispute enters into litigation or arbitration procedure after execution of the maritime preservation, the party may bring an action relating to the maritime to the maritime court which has taken maritime claim preservation or other maritime courts having jurisdiction over it, with the exception of signing of a litigation jurisdiction agreement or an arbitration agreement between the parties.”
[50]Article 29 of the Special Maritime Procedure Law of the People’s Republic of China.
[51]Article 5 paragraph 2 of the Enterprise Bankruptcy Law of the People’s Republic of China.
[52]Article 5 paragraph 2 of the Enterprise Bankruptcy Law of the People’s Republic of China.
[53]Chinese MLA—Cross-Border Insolvency Questionnaire, 2015, p17-18.
[54]Jinchen Xu, ‘Maritime Cross-border Insolvency in China’(July 1, 2019). NUS Law Working Paper No. 2019/013, NUS Centre for Maritime Law Working Paper 19/04, Available at SSRN: https://ssrn.com/abstract=3412628 or http://dx.doi.org/10.2139/ssrn.3412628
[55]Article 19 of the Enterprise Bankruptcy Law of the People’s Republic of China.
[56]See Li Zhu, Hu Zheng-liang, ‘A Reconsideration on Adopting the UNCITRAL Model Law on Cross-border Insolvency in China Triggered by the Bankruptcy of Hanjin Shipping, (2019) Chinese Journal of Maritime Law 68, see also Hou Guo-bin, Wang De-ling, Yang Yun-fu, ‘Discussion on Several Legal Issues of Cross-border Insolvency’, (2019) Chinese Journal of Maritime Law 82.
[57]Treaty between the People’s Republic of China and the Republic of Korea on Judicial Assistance in Civil and Commercial Affairs.
[58]Supra n 54.
[59]Supra n 2, 2617.
[60]Baris Soyer, Andrew Tettenborn, Maritime Liabilities in a Global and Regional Context (first published 2019, Informa Law from Routledge) 192.
[61]Kim v STX Pan Ocean Co Ltd [2014] NZHC 845 at [30].
[62]Martin Davis, Cross-border Insolvency: the Competition between Bankruptcy and Admiralty, the presentation on 43th CMI conference, 2015.
参考文献
[1] Andrew Tettenborn, ‘International Insolvency Law: Its Impact on the Arrest of Ships’, (2017) 23 Journal of International Maritime Law, 266.
[2] Baris Soyer, Andrew Tettenborn, Ship operations: New Risks, Liabilities and Technologies in the Maritime Sector (informa law from Roughledge, 2021).
[3] Baris Soyer, Andrew Tettenborn, Maritime Liabilities in a Global and Regional Context (first published 2019, Informa Law from Routledge).
[4] Chinese MLA—Cross-Border Insolvency Questionnaire, 2015, p17-18.
[5] Cosco Bulk Carrier Co Ltd v Armada Shipping SA [2011] EWHC 216 (Ch).
[6] ‘Core Principles for a Mortgage Law’ (EBRD)
[7] D R Thomas, Maritime Liens (Stevens & Sons Ltd, 1980), [99].
[8] Edward Keeth, ‘Problems in the Liquidation and Reorganization of International Steamship Companies in Bankruptcy’ (1985) Tulane L Rep 1239.
[9] Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 45 (2d ed. 1975).
[10] Hou Guo-bin, Wang De-ling, Yang Yun-fu, ‘Discussion on Several Legal Issues of Cross-border Insolvency’, (2019) Chinese Journal of Maritime Law 82.
[11] In Re David Lloyd & Co (1877) 6 Ch.D. 339.
[12] In Re Wanzer Ltd. [1891] 1 Ch. 305.
[13] Jinchen Xu, ‘Maritime Cross-border Insolvency in China’(July 1, 2019). NUS Law Working Paper No. 2019/013, NUS Centre for Maritime Law Working Paper 19/04, Available at SSRN: https://ssrn.com/abstract=3412628 or http://dx.doi.org/10.2139/ssrn.3412628
[14] James Allsop, ‘Security Interests in Ships’, in D Attard(ed), The IMLI Manual on International Maritime Law (Oxford University Press, 2014), vol II, 152.
[15] Kim v STX Pan Ocean Co Ltd [2014] NZHC 845 at [30].
[16] Li Zhu, Hu Zheng-liang, ‘A Reconsideration on Adopting the UNCITRAL Model Law on Cross-border Insolvency in China Triggered by the Bankruptcy of Hanjin Shipping, (2019) Chinese Journal of Maritime Law 68.
[17] Martin Davies: ‘Cross-Border Insolvency and Admiralty: A Middle Path of Reciprocal Comity’, (2018) 1 The American Journal of Comparative Law 101.
[18] Martin Davis, Cross-border Insolvency: the Competition between Bankruptcy and Admiralty, the presentation on 43th CMI conference, 2015.
[19] Melissa K S Alwang, ‘Steering the Most Appropriate Course between Admiralty and Insolvency: Why an International Insolvency Treaty should Recognize the Primacy of Admiralty Law over Maritime Assets’, (1996) 64 Fordham L Rev 2613, 2615.
[20] Mohammud Jaamae Hafeez-Baig, ‘Navigating the Waters between Admiralty and Cross-border Insolvency: A Comparison of the Australian, German and French positions’, (2018) Lloyd’s Maritime and Commercial Law Quarterly, 97.
[21] Re Aro Co Ltd [1980] Ch. 196.
[22] Re Australian Direct Steam Navigation Co (1875) L.R. 20 Eq.
[23] ‘Recognising UK Insolvency Proceedings in the EU-Where does the UK Stand Post-Brexit?’ (ASHURST, 29 Jan 2021) https://www.ashurst.com/en/news-and-insights/insights/recognising-uk-insolvency-proceedings-in-the-eu accessed 28 Sep. 2021.
[24] The Alkyon [2018] EWHC 2033 (Admlty).
[25] The Helene Roth [1980] Q.B. 273.
[26] The Morica S [1968] p.741.
论跨境破产与船舶扣押的关系
作者：伍方凌来源：德和衡律师事务所
1.