Základní orientace mezinárodního konkurzního práva

The complexity of international bankruptcy law is a characteristic which we do not encounter in either private international law or international civil procedural law. The role of public law on the one hand and private law are decisive for the basic orientation of international bankruptcy regulations. Because of the territorial focus of international bankruptcy law the public law elements are emphasized. On the other hand, for a universal application private law elements are decisive. The first approach emphasizes the sovereignty of the state and the protection of domestic legal relations. The basis of a universal orientation is the idea of supporting international legal relations, procedural economy and the implementation of the principle of equality of creditors irrespective of international borders. On the basis of the analysis given in the previous parts, we may draw the following conclusions: a) The basis for regulating international bankruptcy law invokes a consideration of where different types of law come into conflict, such as public and private law, and substantive and procedural law. At the same time this legal sphere affects the basic rights and freedoms. b) The creation of international bankruptcy law is a result of the development of cross border legal relations of bankruptcy law, and the reason for the establishment, of international bankruptcy law. The main instruments of international bankruptcy law are private international law and international procedural law. The combination of these approaches is another characteristic. c) The goal of international bankruptcy law is to create certainty and stipulate rules for the performance of legal acts of international bankruptcy beyond a county’s borders. d) Theoretical ambitions are difficult to realize because of the unique nature of bankruptcy law, the differences of substantive legal terms as opposed to the basic approaches to international law, and, ultimately, the frequent amendment of legal regulations of individua! states. In order to realize private relationships, including bankruptcy, it is necessary to create the basic conditions for the application of acts of state power. It is especially necessary to allow for the activity of official persons (administrators of the bankruptcy estate) on foreign territory. e) Czech law, within the scope of a very careful, pragmatic solution on the basis of experience in the international arena, need several fundamental changes. Above all it is necessary to alter the conception of international bankruptcy. The change should consist of a transformation from aggressive territorialism to the principle of reasonable universality. – International bankruptcy regulation must be more detailed, and should involve a system of recognition. The law should stipulate the basic presumptions for recognition, or the refusal to recognize. The subject of recognition should be separate bankruptcy proceedings in a foreign country. – Regulations should explicitly stipulate the possibility of parallel domestic bankruptcy proceedings with the understanding that foreign bankruptcy proceedings should not represent a barrier to a case which has commenced. – New regulation should also include the legalization of the approach of foreign property administrators operating domestically. Foreign administrators should also have the right to contest with respect to a domestic debtor or bankruptcy estate.