The article is devoted to the study of the cross-border bankruptcy procedure in Ukraine.

The purpose of the article is to reveal the peculiarities of the cross-border bankruptcy procedure in Ukraine, to identify problematic issues in the legal regulation of bankruptcy proceedings related to foreign bankruptcy procedures, to develop proposals for improving the legal regulation on cross-border bankruptcy in Ukraine.

The author researched the content of the principle of reciprocity and its observance in the understanding of the legislator, and also found out which procedures should be carried out in compliance with the principle of reciprocity and, accordingly, which theories of cross-border insolvency characterize them. The current judicial practice of the Supreme Court in the field of cross-border bankruptcy in Ukraine is analyzed.

 Based on the results of the research, the author formulated the minimum necessary conditions that should be stipulated in a special international treaty in the field of cooperation in cross-border bankruptcy procedures. It has been proven that the crossborder bankruptcy procedure in Ukraine can dwell without the existence of a corresponding international specialized treaty, provided the principle of reciprocity is observed. It is substantiated that the principle of reciprocity could be considered as observed if there is a precedent of recognition of the Ukrainian bankruptcy procedure by a foreign state. The possibility of cooperation with English judicial institutions has been proved, despite the absence of a specialized international treaty between Great Britain and Ukraine due to the fact that the Ukrainian bankruptcy procedure was recognized in England, despite existing legal obstacles. It is emphasized that the unlimited amount of legal aid provided in the Art. 106 of the Bankruptcy Code, may lead to negative consequences.

It has been proven that unlike Ukrainian legal entities, the possibility of applying the cross-border bankruptcy procedure for Ukrainian citizens remains. It was revealed that by virtue of the possibility of providing legal aid to foreign proceedings in which a Ukrainian citizen is a party, it seems possible to circumvent the prescriptions of Art. 115 of the Bankruptcy Code, and to initiate an insolvency procedure against a Ukrainian citizen in another state, and in the future, to realize the latter’s property in Ukraine. With this in mind, it is proposed to amend Art. 103 of the Bankruptcy Code in order to prevent the occurrence of such situations in practice. A collision between the provisions of Part 6 of Art. 97, Part 2 of Art. 101 and Part 1 of Art. 103 of the Bankruptcy Code was revealed. The changes were proposed to Part 2 of Art. 101 of the Bankruptcy Code in order to eliminate the collision. The exigency to remove the mandatory presence of an international specialized treaty in Chapter 8 of the Bankruptcy Code is substantiated. The difference between the private international law and the cross-border bankruptcy is proved and a geometric model of the relationship between those concepts as intersecting lines is proposed. The affiliation of the institution of cross-border bankruptcy to insolvency law is substantiated.

Bibliography

Authored books

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2. Fedyniak H, Fedyniak L, Mizhnarodne pryvatne pravo: pidruchnyk (4-te vyd, pererob і dop, Atika 2009) (in Ukrainian).

3. Poliakov B, Pravo nespromozhnosti (bankrutstva) v Ukraini: pidruchnyk dlia studentiv vyshchykh navchalnykh zakladiv (In Yure 2011) (in Ukrainian).

Journal articles

4. Biriukov O, ‘Pravovi normy u sferi transkordonnykh bankrutstv v mizhnarodnykh dohovorakh’ (2012) 38–39 Visnyk Kyivskoho natsionalnoho universytetu im Tarasa Shevchenka 103 (in Ukrainian).

5. Biriukov O, ‘Rozghliad transkordonnykh sprav pro bankrutstvo v Ukraini: skladnoshchi i perspektyvy’ (2017) 11–12 Yurydychna Ukraina 63 (in Ukrainian).

6. Biriukov O, ‘Transkordonni bankrutstva u mizhnarodnomu pryvatnomu pravi’ (2009) 8 Pidpryiemnytstvo, hospodarstvo i pravo 160 (in Ukrainian).

7. Liubarskyi B, ‘Shchodo pravovoho rehuliuvannia protsedury bankrutstva z inozemnym elementom’ (2021) 10 Yurydychnyi naukovyi elektronnyi zhurnal 219–20 (in Ukrainian).

8. Panchenko V, ‘Transkordonni bankrutstva v Ukraini: orhanizatsiino-pravovi pytannia’ (2022) 3 Analitychno-porivnialne pravoznavstvo 58 (in Ukrainian).

9. Verbitska M, ‘Transkordonne bankrutstvo za zakonodavstvom Ukrainy’ [2016] 3 (7) Aktualni problemy pravoznavstva 47 (in Ukrainian).