It might be yours there but it’s not down here: Issues arising under the PPSA in cross-border transactions

As a relatively new piece of legislation, the Personal Property Securities Act 2009 (Cth) (PPSA) is yet to be the subject of much significant judicial consideration. Whilst the position of the Australian courts is becoming clearer in relation to domestic disputes, parties to cross-border transactions continue to encounter an alarming number of uncertainties with respect to the enforcement and maintenance of their security interests. This article considers the relevant problematic provisions of the PPSA and considers them in light of the authorities dealing with corresponding legislation in other jurisdictions. It then attempts to provide some guidance and suggestions as to the best means of protecting security interests in cross-border transactions.

Cross-border insolvency and legal transnationalisation

The last twenty years have seen an explosion of approaches for dealing with an inevitable consequence of globalised markets, that of cross-border insolvencies. This article places phenomena such as the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-border Insolvency and Cross-border Insolvency Agreements (also known as Protocols) within the context of developing laws on international commercial transactions. First it briefly describes the evolution of the international commercial law (sometimes known as the law merchant) to provide a context to understanding the international commercial responses to the problems created by cross-border insolvencies. Next, it outlines the range of approaches being adopted by States and multilateral bodies in recent decades to resolve cross-border insolvency issues. Finally it draws some preliminary conclusions on the potential implication of this transnationalisation process and broader international commercial law perspective, in particular on the capacity of Cross-Border Insolvency Agreements to address cross-border insolvency issues.

Cross-Border Insolvency Law

This new work provides a comprehensive and theoretically rich discussion of the law on cross-border insolvency. It engages with several current multi-billion dollar insolvencies such as those of Nortel Networks and Lehman Brothers to provide the reader with state of the art knowledge of the complex problems posed by transnational insolvency. As the number of transnational insolvencies grows due to prevailing economic conditions, practitioners are increasingly required to navigate the mass of legal rules applicable to cross-border insolvency situations. The associated challenges are heightened by the diversity of legal structures employed by modern business entities and a patchwork of costly, inefficient, and unpredictable national legal rules. The response has been a proliferation of international legal instruments such as the UNCITRAL Model Law and the the EU Insolvency Regulation, supplemented by judicial practice, adding further layers of complexity. Writing from an Australian perspective, the authors analyse this network of legal rules and subsequent case law. In addition, they explain the theoretical underpinnings of these rules in an accessible manner to build a solid foundation for practice, facilitate advanced reasoning, and enable the development of sophisticated arguments for law reform. Comparative case law from jurisdictions such as the United States and United Kingdom is also included. This book is highly relevant to insolvency practitioners faced with the recovery of assets located in different jurisdictions, transactional lawyers for whom knowledge of potential insolvency pitfalls is essential, and academics. It is invaluable for students at both undergraduate and postgraduate level seeking a sound understanding of this challenging area of law.

Cross-Border Competence Management in Emerging Markets: Voices from China and Russia

This book is on cross-border competence management in Russia and China. Corporations are facing a number of problems and challenges in their international operations, to which there typically are no simple solutions. For instance, they need to understand and respond to cultural and institutional diversity and ascertain that their foreign units are integrated with the rest of the corporation. Throughout this report we will discuss a range of challenges confronting firms as they seek to develop their capabilities to operate internationally. Some of the challenges are clearly case specific, and although this book aims to offer research-based advice to practicing managers there is a potential danger in applying lessons from other companies to the own firm. Our hope is that our analyses of the challenges facing Finnish corporations in China and Russia reported together with extensive quotes from our interviews and insights from other recent studies will help readers draw their own conclusions as to how to deal with issues related to competence management across borders. With this book we also aspire to contribute to the academic literature by providing new insights into cross-border competence management in general and the operations of Finnish corporations in Russia and China in particular.

Reaching across organisational, sectoral and geographical boundaries: exploring the learning potential of an EU cross-border project

Research This paper outlines some of the key findings from an evaluation of the project and demonstrates that EC funded projects such as this, which seek to promote cross border collaboration and understanding (i.e. across organisational, sectoral and geographical boundaries) offer considerable learning potential – not least about variances in health politics across different communities. However, for this learning to be realised a comprehensive system of knowledge management needs to be an integral part of project planning alongside a system for sustaining embryonic professional networks. The concept of managing relationships was also a key part of the projects success. Executing a project funded by the EU demands the development of complex organisational skills to negotiate all the administrative challenges en route to successful completion and this project in particular relied for its success on the development of social relationships of trust and mutual respect across national, professional and social boundaries. Context A three–year European Commission funded project designed to exchange a wide range of staff (professional semiprofessional and voluntary staff in health and social care) project led by the University of Greenwich (UK) and the Université Catholique de Lille, France was completed this year (February 2008). The project was complex because it involved working in different national contexts, was multi-disciplinary, and demanded the negotiation of multiple boundaries. Theories A mixed method evaluation including written reports gathered immediately after each exchange visit and a post hoc series of individual interviews and focus groups was conducted in order to gain qualitative information (from the participants perspective) on their experiences and to identify any learning gained. Results Analysis of the data provided evidence of learning on a number of levels; personally, inter and intra professionally and organisationally as well as across sectors and also from a project management perspective. The learning crystallised around the extent of the differences noted by the participants between the UK and the French health and social care systems despite geographical proximity, common membership of the EU and many shared challenges in health and social care. The extent of these differences, noted at every level from policy to practice proved a rich source for reflection on organisational philosophies, ways of working, distribution of resources, professional roles and autonomy and professional registration and mobility - in short on health politics at ‘macro’ and ‘micro’ levels.

Cross-Border Environmental Governance and EC Law

This article examines the nature and scope of emerging cross-border participatory rights under European Community environmental law. It reviews the legal and political forces that have stimulated the development of such rights and also the specific nature of the rights conferred by three major legislative initiatives: the Community Directives on Environmental Impact Assessment, Integrated Pollution Prevention and Control, and the Water Framework Directive. The article concludes with a case study on Ireland which assesses the likely significance of these cross-border participatory rights for transboundary environmental governance in Ireland.

North/South Infrastructure Development via Cross-border PPP Mechanism

Both Northern Ireland and Republic of Ireland governments recognise the current infrastructural deficits in their respective jurisdictions which, if not addressed, will undermine the future economic prosperity of both regions. This paper considers the adoption of a collaborative approach on the island to addressing the deficit, using public private partnerships (PPP) as the delivery vehicle. It presents a critical perspective of the challenges and opportunities posed by adopting such a cross-border approach. Whilst PPPs have the potential to bring about North-South co-operation, bridge gaps in infrastructure capacity and facilitate the advancement of sectoral knowledge, their adoption on a cross border basis will require significant reorganisation and change at administrative and sectoral levels. This review concludes that governments and construction sector representatives in Northern Ireland and the Republic of Ireland have still some work to do in order to enhance the capability and readiness of public and private partners to evolve an all-island PPP infrastructure development approach.

Hanging Flower Baskets, Blowing in the Wind? Third Sector Groups, Cross-Border Partnerships and the EU Peace Programmes in Ireland

The EU’s Peace programmes in Ireland have promoted the cross-border activity of Third sector groups. Potentially, such activity gives substantive meaning to regional cross-border governance and helps to ameliorate ethno-national conflict by providing positive sum outcomes for ‘post-conflict’ communities. The paper mobilizes focused research conducted by the authors to explore this potential. It finds that while regional cross-border governance has indeed developed under the Peace programmes, the sustainability of the social partnerships underpinning this governance is uncertain and its significance for conflict resolution is qualified by difficulties in forming a stable power-sharing arrangement at the political elite level.

China's Enterprise Bankruptcy Law (EBL 2006): Cross-Border Perspectives

With China's new Enterprise Bankruptcy Law (‘EBL 2006’) having come into effect on 1 June 2007, a critical issue arises as to the extent to which Article 5, as a cross-border provision, will strengthen creditors' rights across jurisdictions. In this paper attention will be paid in particular to how the Chinese People's Court is likely to exercise its discretion to grant recognition to a foreign court ruling, and vice versa. The paper will start with a brief introduction to the circumstances under which Article 5 came into being. The evolution of China's cross-border insolvency practices will be examined through an analysis of an inbound case of B&T (2002) as well as an outbound one of GITIC (2005). In spite of the fact that China has not adopted the UNCITRAL Model Law, essential factors deemed necessary to be considered by China's court and its counterparts in US and UK are to be highlighted throughout the paper. Although the effect of Article 5 remains to be seen, it will be critically analysed focusing on some controversial issues.

European Union Cross-Border Cooperation and Conflict Amelioration

The relevance of European Union (EU) cross-border cooperation for European border con?ict amelioration may be questioned in the contemporary global climate of threat and insecurity posed by forces of ’dark globalisation’. In any case, empirical evidence exposes the limitations of cross-border cooperation in advancing con?ict amelioration in some border regions. Nevertheless, in an enlarged EU which encompasses Central and East European member states and reaches out to neighbouring states through cross-border cooperation initiatives, the number of real and potential border con?icts with which it is concerned has risen exponentially. Fortunately, there are cases of EU ’borderscapes’ that have adopted a cross-border ’peace-building from below’ approach leading to border con?ict amelioration. Unfortunately, countervailing pressures on EU cross-border cooperation from border security regimes (principally Schengen), the Eurozone crisis, EU budgetary constraints, the conceptualisation of ’Europe as Empire’, and the possible recon?guration of the EU itself compromises this approach. Therefore, the path of European integration may well shift from one of inter-state peace-building and regional crossborder cooperation after the Second World War, to border con?ict and coercion in constituting and reconstituting state borders after the recon?guration of the EU.

European Union Cross-Border Cooperation as Conflict Transformation:Potential and Limits

Cross-border cooperation as conflict transformation provides a potential strategy for the European Union (EU) to help realise its founding peacebuilding objective. A wealth of cross-border cooperation activity sponsored by the EU spans a quarter of a century. Although the conflict transformation capacity of that cooperation is questionable in some border regions there is evidence to suggest that it has delivered peacebuilding dividends in other border regions. However, EU cross-border cooperation as conflict transformation faces a number of significant twenty-first century challenges including: ghost borders of the communal imagination; EU external border securitization; perceptions of EU and Russian empire-building; and the Mediterranean transmigrant/refugee crisis. It is argued that these challenges pose significant obstacles to EU cross-border cooperation as conflict transformation and undermine the peacebuilding objective of European integration.

International Coordination in Cross-Border Bank Bail-ins: Problems and Prospects

Bail-in is quickly becoming a predominant approach to banking resolution. The EU Bank Recovery Resolution Directive and the US Federal Deposit Insurance Corporation’s single point of entry strategy envisage creditors’ recapitalisations
to resolve a failing financial institution. However, this legislation focuses on the domestic aspects of bail-in, leaving the question of how it is applied
to a cross-border banking group open. Cross-border banking resolution has been historically subject to coordination failures, which have resulted in disorderly resolutions with dangerous systemic effects. The goal of this article is to assess whether bail-in is subject to the same coordination problems that affect other resolution tools, and to discuss the logic of international legal cooperation in bail-in policies. We demonstrate that, in spite of the evident benefit in terms of fiscal sustainability, bail-in suffers from complex coordination problems which, if not addressed, might lead to regulatory arbitrage and lengthy court battles, and, ultimately, may disrupt resolutions. We argue that only a binding legal regime can address those problems. In doing so, we discuss the recent Financial Stability
Board’s proposal on cross-border recognition of resolution action, and the role of international law in promoting cooperation in banking resolution.

Ownership Advantages in Cross-border Real Estate Development: Some Evidence from European Markets

Drawing upon European industry and country case studies, this paper investigates the scope and drivers of cross-border real estate development. It is argued that the real estate development process encompasses a diverse range of activities and actors. It is inherently localised, the production process is complex and emphermal, and the outputs are heterogeneous. It analyses a transactions database of European real estate markets to provide insights into the extent of, and variations in, market penetration by non-domestic real estate developers. The data were consistent with the expectation that non-domestic real estate developers from mature markets would have a high level of market penetration in immature markets. Compared to western European markets, the CEE real estate office sales by developers were dominated by US, Israeli and other EU developers. This pattern is consistent with the argument that non-domestic developers have substantial Dunning-type ownership advantages when entering immature real estate markets. However, the data also suggested some unexpected patterns. Relative to their GDP, Austria, Belgium, Denmark, Sweden, Netherlands and Israel accounted for large proportions of sales by developers. All are EU countries (except Israel) with small, open, affluent, highly traded economies. Further, the data also indicate that there may be a threshold where locational disadvantages outweigh ownership advantages and deter cross-border real estate development.

Cross-border capital flows into real estate

This study investigates the determinants of cross-border capital flows into direct real estate markets. In particular, it investigates how existing institutional, regulatory and real estate specific barriers affect cross-border real estate inflows and outflows in a sample of 24 developed and emerging countries, and whether investors seek out targets with lower barriers and regulatory arbitrage. We do not find evidence of significant cross-border institutional or regulatory arbitrage in the real estate market. However, real estate market liquidity is found to be the most important driver of cross-border flows. While many of the institutional barriers included in this analysis do not appear to impact the level of real estate inflows significantly, their presence tends to suppress real estate capital outflows to other countries. Overall, easy access to financial markets, a good economic environment and transparent real estate markets may enhance real estate outflows, while returns and the macroeconomy are found to enhance domestic real estate investment.

Privatisation and cross-border electricity trade: from internal market to European Supergrid?

he perspective European Supergrid would consist of an integrated power system network, where electricity demands from one country could be met by generation from another country. This paper makes use of a bi-linear fixed-effects model to analyse the determinants for trading electricity across borders among 34 countries connected by the European Supergrid. The key question that this paper aims to address is the extent to which the privatisation of European electricity markets has brought about higher cross-border trade of electricity. The analysis makes use of distance, price ratios, gate closure times, size of peaks and aggregate demand as standard determinants. Controlling for other standard determinants, it is concluded that privatisation in most cases led to higher power exchange and that the benefits are more significant where privatisation measures have been in place for a longer period.