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[DRAFT] Int'l Bankruptcy Comity

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Separatist Peoples
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[DRAFT] Int'l Bankruptcy Comity

Postby Separatist Peoples » Mon Sep 10, 2018 1:45 pm

International Bankruptcy Comity
Regulation | Legal Reform

Abhorring the lack of international comity requirements for insolvent entities in a world increasingly reliant on globalized commerce;

Fearing that such a lack may permit debtors to evade creditors by shifting assets across international borders, both hindering commerce and increasing the transactional cost of commercial and consumer bargaining;

Believing that bankruptcy is a tool to both protect debtors from insolvency and permanent barriers to obtaining consumer credit and creditors from losing any opportunity for remuneration;

Asserting that no loss of sovereignty truly occurs by extending the courtesy of comity to fellow members of the World Assembly, as all states benefit equally from their extension;

The World Assembly enacts the following:

  1. “Bankruptcy” is a legal process overseen by a court or trustee that reorganizes or discharges debt meant to satisfy creditor claims while protecting debtors from extended insolvency and compounding debt.

  2. A “foreign representative” is a person or persons authorized to appear on behalf of a nongovernmental debtor or creditor to represent the debtor or creditor’s interests in a foreign bankruptcy proceeding.

  3. Member states must establish a judicial or administrative procedure to aid foreign representatives in recognizing and enforcing the applicable foreign bankruptcy laws over fiscal assets within the territorial jurisdiction of that member state.

  4. Member states may require a reasonable analysis of the debtor’s ties to the host jurisdiction and to the foreign jurisdiction to determine whether extending bankruptcy comity is appropriate.

  5. A reasonable analysis may inquire into:

    1. The proportion of assets within the host jurisdiction as compared to those in the foreign jurisdiction;

    2. The length of time those assets have been within the host jurisdiction; and

    3. Any other factor which the member state feels relevant and that facilitates fair and efficient bankruptcy procedures in conformity with the implicit goals of this resolution.
  6. Notwithstanding foreign bankruptcy law, member states must:

    1. Enforce a mandatory stay of any creditor claims against the debtor’s assets within member state jurisdiction pending conclusion of the bankruptcy process if member states have extended comity under Clause 3, except for government liens meant to collect unpaid taxes; and

    2. Supply court records pertaining to ongoing proceedings and past bankruptcies on request by a party or government involved in the instant bankruptcy proceeding.
  7. Member states may charge foreign representatives reasonable administrative or court fees, commensurate with domestic fees for similar work, when enforcing foreign bankruptcy comity claims.

  8. No member state may treat the failure to obtain bankruptcy comity as having a res judicata effect on later domestic claims by either creditors or debtors.

  9. Member states may enforce a time limit on the number of separate bankruptcy comity claims a court may enforce for a debtor.

  10. Nothing in this resolution mandates the extension of comity to non-member states.



Frequently Anticipated Questions


What the hell is bankruptcy?
Bankruptcy theory is simple, though practice is complicated. When a debtor cannot pay their creditors, most states permit them to file bankruptcy. During a bankruptcy proceeding, a court or agency will appoint an uninvolved, impartial Trustee to manage the debtor’s assets in conformity with the law. The Trustee will analyze the debtor’s property and compare it against the debts, and notify all possible creditors that bankruptcy has begun. At the same time, the court will issue a stay of action, or a broad pause on any lawsuits against the debtor until the bankruptcy is resolved. So, a creditor has to file as a creditor in the bankruptcy action to get its money rather than sue the debtor independently. Generally, every nation has a certain threshold of property that a creditor CANNOT take away from the debtor. This is where things are complicated, so suffice it to say that the trustee separates what creditors CAN reach from what the creditors CANNOT reach. The Trustee will also consider which creditor, if there are many, gets what share of the debtor’s assets.

Depending on the nature of the proceeding, the Trustee will either distribute what is available to the credits in full or in part and then dismiss the outstanding claims, will consolidate the debt to streamline repayment, or will find a mutually agreeable payment plan that lets the debtor pay the creditors over time rather than all at once. The theory, and general result, is that even if a debtor has very few assets, the creditors still get something, and the debtor isn’t forever under unpayable debt (though their credit may be ruined). Most bankruptcy laws have a strict time limit for how often a debtor can ask for bankruptcy.
Ideally, bankruptcy is meant to help everybody as best as the situation warrants by reducing the risk of business transactions and protecting both consumers and businesses.

How the hell is this an international issue?
Ordinarily, it isn’t. But in a globalized economy, people can have their assets stored in banks or investments all around the world and owe money in just as many places. Filing a lawsuit in any nation that might have a connection to that money is impractical and wasteful unless there is a good reason to deal with those assets separately.


So, what the hell does this do?
This proposal proposes that member states offer each other comity over bankruptcy laws. Comity is, taken very simply, a situation where one jurisdiction or nation extends and applies the law of a foreign jurisdiction or nation out of both respect and in the interest of simplifying a complicated issue.
For example, let’s say a Debtor has the majority of their money in Nation X, but a small account in Nation Y. Assuming that the Debtor files bankruptcy in Nation X, it makes more sense for Nation Y to treat the Debtor’s assets as part of Nation X’s bankruptcy proceeding, rather than making the Debtor file in Nation Y as well, since the Debtor is a resident of Nation X and also has most of their assets in Nation X. It also means that creditors don’t need to scour the world to get their money, and debtors don’t need to scour the world to protect themselves. Everybody has an easier time and spends less money, which helps everybody settle the issues more easily. It also prevents both creditors and debtors from shopping for ideal venues to protect themselves unfairly.


What the hell happens if most of your assets are somewhere else?
Most jurisdictions allow a party who sues you to do so where the defendant is a resident or where they do the bulk of their business, regardless of other considerations. It makes intuitive sense to sue somebody where they are based: it gives the suing party a back-up if no other venue is appropriate. This isn’t much different. There are always unusual situations, but this proposal allows member states to consider appropriate venue for bankruptcy proceedings. So, if a nation feels that bankruptcy more appropriately belongs in a different venue, it can say so. Similarly, if a nation feels that the business’ assets are so significant as to merit being dealt with under that nation’s law, they can refuse comity. This proposal lets nations weigh what is most efficient and just for their own system and act accordingly, while still streamlining most cases.


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Hell yes, I do.
Last edited by Separatist Peoples on Tue Apr 09, 2019 6:21 am, edited 10 times in total.

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Postby Christian Democrats » Mon Sep 10, 2018 2:36 pm

We think we can get on board with this proposal. Could the authoring delegation add a clause requiring foreign governments, upon the request of a domestic government, to supply court records pertaining to ongoing proceedings and past bankruptcies?
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Postby Separatist Peoples » Mon Sep 10, 2018 2:37 pm

Christian Democrats wrote:We think we can get on board with this proposal. Could the authoring delegation add a clause requiring foreign governments, upon the request of a domestic government, to supply court records pertaining to ongoing proceedings and past bankruptcies?

"Absolutely. Wish I had thought of that myself."

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Postby Sierra Lyricalia » Mon Sep 10, 2018 2:41 pm

(nevermind, I actually read the damn FAQ :blush: )
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Postby Separatist Peoples » Fri Sep 14, 2018 4:52 am

OOC: Well, if there are no issues, I may as well submit.

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Postby Bears Armed » Fri Sep 14, 2018 9:22 am

"May I suggest replacing the word "mandates" in clause 10 with "mandates or forbids"?"

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Postby Thermodolia » Fri Sep 14, 2018 1:52 pm

“Against. This would screw up Thermodolian banking laws.”
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Postby Separatist Peoples » Fri Sep 14, 2018 2:37 pm

Thermodolia wrote:“Against. This would screw up Thermodolian banking laws.”

"How, exactly?"

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Postby Thermodolia » Fri Sep 14, 2018 6:47 pm

Separatist Peoples wrote:
Thermodolia wrote:“Against. This would screw up Thermodolian banking laws.”

"How, exactly?"

“Under Thermodolian federal law it is against the law for any bank to release the identity of any person who holds an account in a Thermodolian registered bank. A bank cannot acknowledged that an individual even has an account at said bank.”
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Postby Imperium Anglorum » Fri Sep 14, 2018 9:45 pm

So your own laws allow people to default on their contractual obligations without any financial consequence? We tried this in Ancient Greece. It didn't work well.

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Postby Thermodolia » Fri Sep 14, 2018 9:52 pm

Imperium Anglorum wrote:So your own laws allow people to default on their contractual obligations without any financial consequence? We tried this in Ancient Greece. It didn't work well.

Seems to work fine for the Swiss
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Postby Imperium Anglorum » Fri Sep 14, 2018 10:04 pm

No, not really.

The position of the banking secret in relation to the Federal Law of Prosecution for Debt and Bankruptcy (SchKG) has been settled except for the procedure of "arrest," and it is commonly held that the rule of banking secrecy cannot grant any protection against measures for distraint. If a debtor does not comply with an official order to pay or does not succeed in his action against such order, Swiss law provides that his property can be seized or, if he is registered in the Register of Commerce, that he may be made bankrupt.

In the case of seizure the law expressly provides that all objects in the possession of the debtor as well as assets deposited with third parties, including banks, may be liable to distraint. Consequently, the banks are obliged to give information to the debt collection office on all the debtor's assets in their possession and the debt collection office is even permitted to compel the opening of a safe. In short, the bank is obliged to disclose information to the same extent as its client and cannot refer to its duty of secrecy.

Kurt Mueller, The Swiss Banking Secret: From a Legal View, 18 Int'l & Comp. L.Q. 360, 368–369 (1969).

EDIT: (1) Edited in citation. (2) Edited in quote for relevant passage. (3) Edited out footnotes which appear as numbers that were accidentally copied in.
Last edited by Imperium Anglorum on Sat Sep 15, 2018 2:48 pm, edited 3 times in total.

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Postby Separatist Peoples » Sat Sep 15, 2018 4:11 am

Thermodolia wrote:
Separatist Peoples wrote:"How, exactly?"

“Under Thermodolian federal law it is against the law for any bank to release the identity of any person who holds an account in a Thermodolian registered bank. A bank cannot acknowledged that an individual even has an account at said bank.”

"So how do you prosecute financial crime if your prosecutors cannot engage in basic discovery?"

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Postby Sefy the Great » Sat Sep 15, 2018 4:16 am

Separatist Peoples wrote:Do you just like swearing in your FAQ?
Hell yes, I do.

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Postby Thermodolia » Sat Sep 15, 2018 8:10 am

Separatist Peoples wrote:
Thermodolia wrote:“Under Thermodolian federal law it is against the law for any bank to release the identity of any person who holds an account in a Thermodolian registered bank. A bank cannot acknowledged that an individual even has an account at said bank.”

"So how do you prosecute financial crime if your prosecutors cannot engage in basic discovery?"

“Investigators must obtain a court order in order to investigate financial crimes. However there must be undeniable proof that a financial crime was committed”

“Also during a bankruptcy a debtor is required to hand over all accounts to the trustee, who then legally becomes the owner of the accounts and is able to access the funds. Failure to do so results in jail time. However this only applies to those who live in Thermodolia.”
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Postby Separatist Peoples » Sat Sep 15, 2018 1:47 pm

Thermodolia wrote:
Separatist Peoples wrote:"So how do you prosecute financial crime if your prosecutors cannot engage in basic discovery?"

“Investigators must obtain a court order in order to investigate financial crimes. However there must be undeniable proof that a financial crime was committed”

“Also during a bankruptcy a debtor is required to hand over all accounts to the trustee, who then legally becomes the owner of the accounts and is able to access the funds. Failure to do so results in jail time. However this only applies to those who live in Thermodolia.”


"Ambassador...literally none of that is how normal bankruptcy operates, unless you've decided to set it up to be as backwards as possible. Generally, the debtor relinquishes accounts to a trustee, who has no title to the property, merely legal custody limited by fiduciary duties. Failure to do so terminates the bankruptcy proceeding, subjecting the debtor to creditor collection attempts. And the only reason an individual is party to a bankruptcy is if they are the debtor, the trustee, the creditors, or a court. Basic discovery procedure makes all of this information available to all parties already, my draft merely facilitates it. Do you not permit parties to engage in discovery without issuing a court order? Your judges must be infuriated at every turn at the lack of cooperation."

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Postby Thermodolia » Sat Sep 15, 2018 2:44 pm

Separatist Peoples wrote:
Thermodolia wrote:“Investigators must obtain a court order in order to investigate financial crimes. However there must be undeniable proof that a financial crime was committed”

“Also during a bankruptcy a debtor is required to hand over all accounts to the trustee, who then legally becomes the owner of the accounts and is able to access the funds. Failure to do so results in jail time. However this only applies to those who live in Thermodolia.”


"Ambassador...literally none of that is how normal bankruptcy operates, unless you've decided to set it up to be as backwards as possible. Generally, the debtor relinquishes accounts to a trustee, who has no title to the property, merely legal custody limited by fiduciary duties. Failure to do so terminates the bankruptcy proceeding, subjecting the debtor to creditor collection attempts. And the only reason an individual is party to a bankruptcy is if they are the debtor, the trustee, the creditors, or a court. Basic discovery procedure makes all of this information available to all parties already, my draft merely facilitates it. Do you not permit parties to engage in discovery without issuing a court order? Your judges must be infuriated at every turn at the lack of cooperation."

“Ambassador. The Thermodolian legal system is, to put it bluntly, complex. There’s a difference between federal and national law, some laws can only apply to certain provinces, and so forth.

However I did misspeak about ownership of the accounts. Do to the way the banking law is set up only owners and co-owners of the accounts have access to said accounts. It is impossible for an owner to allow someone to access their accounts as many banks will not accept it. Therefore under the current system the trustee is considered to be an owner of the accounts so that they can handle the financials properly. The reason why the debtor is forced to hand over the accounts is because if they did not the banks wouldn’t disclose if said debtor was a client of the bank.

On the second part court orders are only involved during dealings with banks. In many cases a judge will issue a continuing order which means that the bank or banks to which the order apply to must open up the accounts that are covered under the order to both parties for the amount of time described in the order. But otherwise a court order is required to investigate any bank.”
Last edited by Thermodolia on Sat Sep 15, 2018 2:44 pm, edited 1 time in total.
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Postby Separatist Peoples » Sat Sep 15, 2018 3:26 pm

Thermodolia wrote:“Ambassador. The Thermodolian legal system is, to put it bluntly, complex. There’s a difference between federal and national law, some laws can only apply to certain provinces, and so forth.

"If you've not preempted bankruptcy law by now, ambassador, its small wonder you've made it so complex."

However I did misspeak about ownership of the accounts. Do to the way the banking law is set up only owners and co-owners of the accounts have access to said accounts. It is impossible for an owner to allow someone to access their accounts as many banks will not accept it. Therefore under the current system the trustee is considered to be an owner of the accounts so that they can handle the financials properly. The reason why the debtor is forced to hand over the accounts is because if they did not the banks wouldn’t disclose if said debtor was a client of the bank.

On the second part court orders are only involved during dealings with banks. In many cases a judge will issue a continuing order which means that the bank or banks to which the order apply to must open up the accounts that are covered under the order to both parties for the amount of time described in the order. But otherwise a court order is required to investigate any bank.”

"Then issue court orders to comply. Glad we resolved that."
Last edited by Separatist Peoples on Sat Sep 15, 2018 3:26 pm, edited 1 time in total.

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Postby Separatist Peoples » Thu Oct 25, 2018 12:52 pm

OOC: Bump

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Postby Imperial Polk County » Thu Oct 25, 2018 1:08 pm

"You spelled 'committee' wrong."

Drane pauses for dramatic effect.

"Oh, lighten up, Ambassador. I will say it is refreshing to have coherent definitions in a resolution of this scope. If I wanted to be picky, I would ask that the words 'defined as' be added to clauses 1 and 2, as that reads a little more smoothly, but I see no other stylistic or grammatical issues. It appears you have adequately covered both individual and corporate bankruptcy, so I see no reason not to support this as written."
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Postby Separatist Peoples » Mon Oct 29, 2018 12:45 pm

OOC: If we aren't going see more criticism, I may just submit this as-is.
Last edited by Separatist Peoples on Mon Oct 29, 2018 12:45 pm, edited 1 time in total.

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Postby Araraukar » Mon Oct 29, 2018 2:11 pm

Imperial Polk County wrote:"You spelled 'committee' wrong."

OOC: I can't help but see this in the title every single time... :rofl:

Separatist Peoples wrote:OOC: If we aren't going see more criticism, I may just submit this as-is.

OOC: Fairly sure I read earlier today on one of the threads another GenSec'er mentioning "Legal Reform" AoE as "being about law as a business", which I read to mean courts instead of finances? When my tired eyes re-find that, I'll throw in a link.
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Separatist Peoples
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Postby Separatist Peoples » Mon Oct 29, 2018 2:59 pm

Araraukar wrote:
Imperial Polk County wrote:"You spelled 'committee' wrong."

OOC: I can't help but see this in the title every single time... :rofl:

Separatist Peoples wrote:OOC: If we aren't going see more criticism, I may just submit this as-is.

OOC: Fairly sure I read earlier today on one of the threads another GenSec'er mentioning "Legal Reform" AoE as "being about law as a business", which I read to mean courts instead of finances? When my tired eyes re-find that, I'll throw in a link.

BA said that. I wrote the AoE to affect law as an industry, but that can affect the private side of litigation as much as the public side. Regulation is a counterweight to AoI, but can still have a policy benefit for the industry.
Last edited by Separatist Peoples on Mon Oct 29, 2018 3:09 pm, edited 3 times in total.

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Postby Blackledge » Mon Oct 29, 2018 3:20 pm

We support this proposal.
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