Учебный год 2023 / phd

LEGAL CHALLENGES OF CROSS-BORDER INSOLVENCIES IN SUB-SAHARAN AFRICA WITH REFERENCE TO TANZANIA AND KENYA: A FRAMEWORK FOR LEGISLATION AND POLICIES

BENHAJJ SHAABAN MASOUD

A thesis submitted in partial fulfilment of the requirements of Nottingham Trent University for the degree of Doctor of Philosophy

February 2012

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ABSTRACT

Although a substantial body of literature has developed in recent years in the area of cross-border insolvency, this scholarship has been dominated by scholars from the United States and Europe, so that a perspective from most of Sub-Saharan African (SSA) countries is lacking. This study addresses this perspective. It makes an in-depth examination and discussion of the challenges that SSA countries face in reform and application of cross-border insolvency law given the ever-growing multinational trade and investment. The study focuses on the risk of failure of SSA legislative processes to properly address the potential challenges of cross-border insolvencies in a manner that is sensitive to the local contexts and which provides a balance with international insolvency benchmarks. It examines cross-border insolvency theories; the global drivers for convergence of insolvency law through global insolvency norms; and the implications for cross-border insolvency regulations arising from cross-border trade and investment arrangements, such as the bilateral investment treaties, before considering the state and future of the legislative frameworks of SSA countries. It then brings out the ‘pressures’ exerted on and issues that emerge in the consideration and quest for crafting a workable and appropriate cross-border insolvency framework for a SSA country. Notably, the current insights and the pressures from the global convergence may result in unsuitable legislative reforms as such insights and the global insolvency norms are not necessarily and directly relevant to SSA situations. The study offers the perspective that has hitherto been lacking in the current scholarship and provides a theoretical insight and understanding on how the crafting of a workable and appropriate legislative framework may be undertaken, taking account of local policies and providing a balance with the existing international insolvency benchmarks. The study underscores the significance and challenge of prioritising the local contexts in developing a functional cross-border insolvency framework.

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CONCEPTUAL AND THEORETICAL ASPECTS OF THE CROSS-BORDER INSOLVENCY LANDSCAPE WITH REFERENCE TO SUB-SAHARAN

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2.3A Brief Overview of Theoretical and Policy Foundations of

2.6Placing the Theoretical Approaches and the Associated Issues in

3.2Globalisation and the Pressure for Convergence of Insolvency Law

3.3Global Insolvency Norms and the Benchmarking of Insolvency

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3.3.1The ‘Soft Law’ Approach of the Standardisation Initiatives and the

3.3.2Relevance and Suitability of International Insolvency Standards in

3.4Appraising the Nature and Compliance’s Assessments of the

3.5The Recent Global Crisis and the Continued Influence of

3.6Towards Adoption of and Compliance with International

3.7Drivers behind the Emerging Reform Trends in Sub-Saharan

4.2Overview of the Linkage between Cross-Border Insolvency and

4.4Multilateral Institutions’ Role in Facilitation of Cross-Border Trade

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4.4.1The Proposed Role of WTO in Financial Crisis Resolution and the

4.4.2An Example of Cross-Border Insolvency Implication Arising from

4.5The Bilateral Investment Arrangements and their Linkage to Cross-

4.5.1The Implications of the Bilateral Investment Treaties for Cross-

4.5.2Linking Tools between Bilateral Investment Treaties and Cross-

4.6.1Inter-Regional Economic Arrangements and the Cross-Border

4.6.2Regional Economic Arrangements and the Cross-Border Insolvency

4.6.3Critiquing the Inter-Regional and Regional Trade Arrangements

4.7The ‘Crowding in’ and ‘Crowding out’ Effects of Cross-Border

Trade and Investment in the Context of Cross-Border Insolvency 149

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4.7.1 The ‘Crowding In’ and ‘Crowding Out’ and their Related Effects 150

4.7.2The Potential Impact of Effective Cross-Border Insolvency

4.8A Case for Differential and Contextual Treatments in Cross-Border

THE COMMON LAW APPROACH TO CROSS-BORDER INSOLVENCY AND ITS APPLICABILITY IN SUB-SAHARAN AFRICA WITH REFERENCE TO TANZANIA AND KENYA

5.1 Introduction

5.2A Historical Basis of Cross-Border Insolvency Frameworks in

SSA’s Legal System

5.2.1The Reception and Nature of the Cross-Border Insolvency Law

Inherited from the Colonial Administration in SSA

5.2.2A Brief Survey of the State of Cross-Border Insolvency at Common

5.3Considering the Common Law Approach in Light of Cross-Border Insolvency Theories and the International Insolvency Benchmarks 177

5.4Fitting the Common Law Approach into Cross-Border Trade and

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6.2A Brief Overview of Legal and Socio-Economic Settings in SSA

6.3The International Character of Tanzania’s Insolvency Related

6.3.1Cross-Border Insolvency Aspects in Tanzania’s Inherited Colonial

6.4The International Character of Kenya’s Insolvency Related

6.4.1Cross-Border Insolvency Aspects in Kenya’s Inherited Colonial

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6.4.2Legislative Reform Initiative and Cross-Border Insolvency

6.4.3Cross-Border Insolvency Features Emerging From the Kenyan

6.4.3.1 Towards Adoption of the UNCITRAL Model Law on Cross-Border

6.4.3.2.1Application of the Proposed Law to Foreign Jurisdictions

6.4.3.2.2Treatment of Foreign Creditors and Foreign

6.5Applying the Relevant Bankruptcy Rules into Cross-Border

6.5.2Impact of the Cross-Border Bankruptcy Rules for Cross-Border

6.5.3Effect of the Contemplated Kenyan Reform on the Future of Cross-

6.6State Owned Enterprises and the Treatment of Cross-Border

6.7Cross-Border Insolvency Treatment in SSA Regional Groupings

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