THE IMPACT OF JURISDICTION PRINCIPLES AND LEGAL TRADITIONTO ADOPT OF UNCITRAL CROSS BORDER INSOLVENCYINJAPAN, SOUTH KOREA, INDONESIA, THAILAND, MALAYSIA,SINGAPORE, PHILLIPINE, USA and EROPEAN UNION

Introduction
Now days 3 multilateral or international community agreement such as ASEAN plus
3, plus 6, AFTA, NAFTA, or TPP there has been steady increase cross bordercommerce among the countries. The development of global economy andInternational business transactions, cross border insolvency issues are often found andbecome a global problem. Applicability of the territoriality principle and the statesovereignty principle in most civil law and common law countries causes abankruptcy judicial decision unable to be recognized and executed in another country,
so that the asset of debtors located outside the region cannot be included into the setof the bankrupt’s property. It will cause reduction of sum of bankrupt’s property,
which will be used to pay a sum of debt to the creditors, so that the fulfillment of therights of the creditors payment won’t be accomplished. Globalization means, in partthat companies know no boundaries. Their assets and liabilities are spread across geopolitical borders, which are significant as far as conventional bankruptcy proceedings
are concerned.
How does it result when the big precedent the Bank of Credit and Commerce
International (BCCI) collapsed on July 5, 1991? ; How could the trustee responsible
for marshaling BCCI’s assets possibly make good on the $10 billion owed creditors
when those assets were located in 72 countries? After all, officials in at least some ofthose countries might and did refused to transfer control over BCCI’s local assets,1

preferring domestic creditors first. When BCCI’s Tokyo branch suspended operations
on July 5, 1991, a special liquidation proceeding was commenced in Tokyo District
Court. The Court appointed a liquidator, who decided to participate in the worldwide
pooling arrangements, based in Luxembourg, with the approval of BCCI’s creditors.
As of July 1998, in accordance with the pooling arrangement, a second dividend
payment was made to the creditors. The point is that not every liquidator in every
country will behave in as globally minded a way as the liquidator for BCCI-Tokyo.
Even in Japan, the decision was easy given the peculiar circumstances. Creditor
claims against BCCI-Tokyo far exceeded the branch’s assets (if it is proper to speakof a branch having assets and liabilities separate from those of the parent).1

The post Uruguay round dispute resolution mechanism has insight for the problem ofjurisdiction. The famous “National Treatment” principle is a basis for critiquing thestatus foreign claimant have in home country Insolvency proceeding, and tradenegotiations might be a model for expanding recognition and enforcement of foreign
proceedings. On January 1, 1995 the World Trade Organization (WTO) was born,with the General Agreement on Tariff and Trade (GATT)2 with its 9 annexes (TRIP’s
Trade Related Aspect of the Intellectual Property Rights, Trade Related Investment
Measures TRIM’s ect). To be sure in International trade negotiation, concessions are
made on the basis of reciprocity. Under National Treatment Principles in GATT
provision on article III were issued of reciprocity and Most Favored Nation provision(MFN) on article I, where all of the WTO member are expected not to discriminate

1

Bhala , Raj International Dimension of Japanese Insolvency Law (Monetary and Economic
Studies , 2001).at.132.
2

World trade Organization officials website : http//www.wto.org

2against other WTO members , obliged to treat other WTO members equally.3 JapanThe first Asian Country who adopted UNCITRAL Model Law 1997 and next South
Korea have been following.

ASEAN countries such as Indonesia , Thailand,

Philippine , Malaysia, and Singapore have not adopted of The UNCITRAL Model
Law Cross Border Insolvency 1997 yet.
Global market has brought global investments in cross border circumstance. In
Indonesia based on article 436 RV (recht verordingen / code civil law procedural) “ aforeign judicial decision cannot be recognized and executed in Indonesia appropriate
with territoriality principle. It will cause a foreign bankruptcy judicial decision cannot
be recognized and enforcement automatically in Indonesia and so does with Indonesia
bankruptcy judicial decision in a foreign country.
The Asia global economic crisis in 1997 has spurred money countries in Asia to makebankruptcy law reform, especially in cross border insolvency regulation. In order toface the cross border insolvency issues Japan tried to fix the local bankruptcy law
refer to the UNCITRAL Model Law on Cross Border Insolvency with Guide toenactment issued by the United Nations. Knowing that, there are not any local orinternational regulation about cross border insolvency in Indonesia yet, but sooner orlater should be changed. It is very Important for Indonesia to take part in reforming
the legal instruments policy to deal with cross border insolvency problems but
conduct and ratify international treaties or arrange its local bankruptcy law refers toModel Law.

3

http://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm

3In fact, Indonesian Bankruptcy Policy adopted double standard which Territoriality
Principle for foreign judicial decision recognition and Universality principle used for
debtor’s property located in foreign country.
Each countries have characteristic of their own legal traditions such as civil law orcommon law. And every country should be established with territoriality jurisdiction
principles in commonly. How this legal system have influence (accelerator or barrier)to adopt UNCITRAL Model Law on Cross Border Insolvency (CBI)? And how that's
effect to changing of the Territoriality to Universality system in Cross Border
Insolvency cases. Probably by the end of this research it will have picture how
Indonesia should apply kind of country typically experience to adopt UNCITRAL
Model Law on CBI.
Research Design Variables
This research will use normative data, book and article literature in English version
regarding of the research topic. The research questions create more focusing on
analysisand details descriptions answers. The research of analysis have useddescriptive analytically through the details of Research Variable.
The Dependent Variable
The Adoption Policy ofJapan, South Korea, Indonesia, Malaysia, Thailand,

Philippine and USA to The UNCITRAL Model Law on Cross Border Insolvency

4

The Independent Variables
1. Legal Tradition in each countries have affect in adoption of UNCITRAL on
CBI.
2. The Model of Jurisdiction (universality/territoriality/modified) have result in
adoption UNCITRAL on CBI
3. Each country policy in order to proceeding of theforeign insolvency

judgments ?

5

Chapter 1: Cross Border Insolvency and Jurisdiction Policy
1.1. UNCITRAL Model Law on Cross Border Insolvency

Under Black Laws Dictionary Insolvency is define as4 :“ the condition of the a person who is insolvent ; inability to pay one’s debt;
lack of means to pay ones debt”
Roman Tomasic (2005) define 5 :“ Cross Border Insolvency may occur, for instance , where an insolvent
debtor ha assets in more than one state, or where creditor are not from thestate where the insolvency proceedings are taking place, yet the across-borderinsolvency can apply to individuals or corporations”

Phillip R Wood state that:“ Cross Border Insolvency proceeding overrode the previous strict territorially ofstate insolvency proceedings which did not extend to assets located in foreigncountries or vice visa”6

The Resolutions 2205 (XXI) of 17 December 1966, by which created the United
Nation Commission on International Trade Law (UNCITRAL) with mandate tofurther the progressive harmonization and unification of the law of international trade.
On May 30th 1997 the United Nation Commission on International Trade Law

4Black Laws Dictionary, Sixth edition . St Paul, Minnesota : West publishing Co, 1990. At

716.
5Tomasic, Roman. Insolvency Law In The East Asia , (England: Ashgate Publishing Limited,2005) at 542.
6

Wood, Phillip.R. Principle of International Insolvency , (London: Thomson Sweet &Maxwell , 2007 ) at 179.

6

(UNCITRAL) adopted the text of a model law on Cross Border Insolvency Law(CBI).
UNCITRAL Model Law on CBI January 1998 noted:“..Increased cross border trade and investment lead to greater incidence of cases
where enterprises and individuals have assets in more that one state. Also thatwhen debtor with assets in more than one state becomes subject to an
insolvency proceeding, there often exists an urgent need for cross bordercooperation and coordination in the supervision and administration of theinsolvent debtors assets and affairs…”
There are four principles on which the model law is built. They are7:
a. The access principle
b. The recognition Principle
c. The Relief principle
d. The cooperation and coordination principle
Those principles are designed to meet the following public policy objectives 8:
a. The need for greater legal certainty for trade and investment;b. The need for aid and efficient management of International Insolvency
proceedings, in interest of all creditors and other interested persons, including
the debtor;
c. Protection and maximization of the value of the debtor’s assets for
distributions to creditors, whether by reorganization or liquidation;d. The desirability and need for courts and other competent authorities tocommunicate and cooperate when dealing with insolvency proceedings in
multiple states

7

UNCITRAL Model Law on Cross Border Insolvency: The Judicial Perspective . United
Nation New York , February 2012 .at 5
8Preamble to the UNCITRAL Model Law 19977

e. The facilitation of the rescue of financially troubled business with the aim ofprotecting investment and preserving employment.
The objectives of the UNCITRAL Model Law on Cross Border Insolvency 9:
1. Cooperation between the courts and other competent authorities of this Stateand foreign States involved in cases of cross-border insolvency;
2. Greater legal certainty for trade and investment;
3. Fair and efficient administration of cross-border insolvencies that protects theinterests of all creditors and other interested persons, including the debtor;
4. Protection and maximization of the value of the debtor’s assets; and5. Facilitation of the rescue of financial troubled business, thereby protecting
investment and preserving employment.
The basic purpose of the UNCITRAL Model Law is to provide an effective
mechanism for dealing with cases of Cross Border Insolvency.10 The law is based onnine principles, which are follows:First: The court of the enacting State shall recognize only one foreign proceeding as aforeign main proceeding.
Second: The recognition of a foreign proceeding shall not restrict the right tocommence a local proceeding.

9

United Nations (a), Model Law in Cross – Border Insolvency with Guide to Enactment,(New York: United Nations Publishing, 1997), at 3.
10

Bhahal, Raj, International Dimension of Japanese Insolvency Law (2012) at 151. See. Also .
Andree J. Berends , UNCITRAL Model Law on Cross Border Insolvency , 6 Tulane.J.Int’l &Comp.L.(1998).at 323.

8

Third: A local proceeding shall prevail over the effects of a foreign proceeding andover relief granted to a foreign representative, regardless of whether the local
proceeding was opened prior to or after the recognition of a foreign proceeding.
Fourth: When there are two or more proceedings, there shall be cooperation andcoordination. Fifth: A foreign proceeding shall be recognized as a foreign mainproceeding if the foreign proceeding is opened in the State where the debtor maintains
the center of his main interests. A foreign proceeding shall be recognized as a foreign
non-main proceeding if the foreign proceeding is opened in a State where the debtor
has an establishment.
Sixth: Upon recognition of a foreign proceeding as a foreign main proceeding, some
types of relief will come into effect automatically. They will be in effect until
modified or terminated by the court. Upon recognition of a foreign proceeding as aforeign main proceeding, some other types of relief may be granted by the court, butthey will not come into effect automatically. Upon recognition of a foreign
proceeding as a foreign non-main proceeding, relief can only come into effect if it isgrantee by the court.
Seventh: Coordination may include granting relief to the foreign representative. In
granting relief to a foreign representative of a foreign non-main proceeding, the court
must be satisfied that the relief relates to assets falling under the authority of theforeign representative.
Eighth: Creditors shall be allowed to file claims in any proceeding. Payments tocreditors from multiple proceedings shall be equalize

9Ninth:If there are surplus proceeds of a local non-main proceeding, they shall betransferred to the main proceeding.
UNCITRAL Model law on CBI foreign proceeding have drafted similar with Chapter
15 United States Bankruptcy Act, is automatically recognition such under article 20
Effect of recognition of foreign main proceeding :(1) Upon recognition of foreign proceeding that is a foreign main proceeding :a. Commencement or continuation of individual actions or individual
proceeding concerning the debtors assets, rights, obligations or
liabilities is stayed;b. Executions against the debtors assets is stayed;c. The right to transfer, encumber or otherwise dispose of any assets ofthe debtor is suspended.
With this the principle of recognitions between foreign and home countries
adopted fully universalism than territoriality.

There are 19 countries (2010) who

have adopted UNCITRAL Model Law on Cross Border Insolvency such following
tables11:

No
1
2
3
4
5
6
7
8
9
10
11
12
13
14

Countries
Australia
CanadaColombia
Eritrea
GreeceJapan
Mauritius
MexicoMontenegro
New Zealand
PolandSouth Korea
Romania
SerbiaYear Enacted
2008
2009
2006
1998
2010
2000
2009
2000
2002
2006
2003
2006
2003
2004

11

http://www.uncitral.org/uncitral/en/uncitral.texts/insolvency/1997Model_status.html

10

15
16
17
18
19

Slovenia
South Africa
Great Britain
British Virgin Islan
USA

2007
2000
2006
2003
2005

1.2. Jurisdiction Principles: Territoriality Through Universality
The various approaches to a cross-border insolvency may be classified into fivegeneral categories by Professor Lynn LoPucki12: (1) universalism; (2) modified
universalism; (3) secondary insolvency; (4) corporate-charter contractualism ; and (5)territorialism.

Universalism, also known as pure universalism, unity, and ubiquity, is a system
in which all aspects of a debtor's insolvency are conducted in one central
proceeding under one insolvency law. Because countries are generally
unwilling to allow another state's courts to have unfettered control over local
assets and persons, the universalist system relies predominately on some levelof international treaty or convention.13
Modified Universalism incorporates the philosophy of universalism but accepts that acountry may only unilaterally control its own territory and laws. Under a modified
universal regime, a country does not try to coordinate its legislation with anothercountry but rather creates a system that is open to cooperation while seeking thebroadest impact possible for its own laws. There are two distinct aspects to this12

Anderson, Kent. The cross border Insolvency paradigm: a defense on the modified universal
approach considering the Japanese experience . U.pa. J.Int’l con.L. See. E.g.. Lynn M.LoPocky.
Cooperation in International Bankruptcy: A Post-Universalist Approach, 84 CORNELL L. REV. 696(1999).
13

See.id .at 687.

11

framework. The first aspect is that a state's insolvency laws must be drafted to reachout as widely as possible by providing for extraterritorial effect in all areas, including
the creation of an estate, the issuance of protective stays, and the recognition ofclaims. Second, the local courts must occasionally be willing to give up control ofdomestic assets and interests for the benefit of a foreign insolvency. A local court

modified universal regime- usually referred to as the ancillary court may
relinquish control of those aspects of a case directly under its authority, but only after
a review of the foreign insolvency proceeding. The net result of this approach is that
not only must a modified universal system be prepared to address cooperative
universal-like cases, but it must also be structured to accommodate territorial
proceedings, whether brought about by foreign non-recognition or by domestic

denial of cooperation14.
Territorialism is the default system for all cross-border insolvency systems, because
it relies on actual in rem control over assets. Under the territorial approach, a separate
and independent plenary case is pursued in each forum in which the debtor's assets arelocated.15 The benefits of territorialism are varied. At the most basic level,
territorialism, unlike any of the alternatives, does not require any special legislation,
nor does it deviate from the universally adopted rules of jurisdiction and sovereignty.
The territorial approach also avoids conflicts among priority and other substantive
insolvency rules, because each court deals exclusively with local interests pursuant tolocal laws.

1.3 . Legal Tradition System

14

See.id.at.690.

15

See.Id .at 697.

12

Legal Systems
There are various definitions of the term “Legal system”:
Legal systems, as that term is here used , in operating set of legal institutions,procedure, and rules.16 In other terms legal system have written as juridical system orsystem of law.17
Each law in fact constitute a system : it has vocabulary used to expressed concept, it
has techniques for expressing rules and interpreting them, it is linked to a view of thesocial order itself which determined the way in which the law in which the law isapplied and shapes the very function of the law in that society.18
The term of legal system refers to the nature and content of the law generally, and thestructures and methods whereby it is legislated upon, adjudicated upon andadministered, within a given jurisdiction. A legal system may even govern a specificgroup of persons. Thus a person belonging to various groups could be subject to as
many legal systems.
Civil Law
Civil law may be defined as that legal tradition which has its origin in Roman law, as
codifed in the Corpus Juris Civilis of Justinian, and as subsequently developed inContinental Europe and around the world. Civil law eventually divided into two
streams: the codified Roman law (as seen in the French Civil Code of 1804 and its
progeny and imitators Continental Europe, Quebec and Louisiana being examples);and uncodified Roman law (as seen in Scotland and South Africa). Civil law is highly

16

JH Merryman, the Civil Law Tradition: an introduction to the legal system of Western
Europe and latin America 1(2d ed. Stanford University Press 1985). From William Tetley , Mixed
Jurisdiction: Common Law v. Civil Law (Codified and Uncodified) (McGill University , Unidroit Law
Review , 1999)17
Quebec research Center of private and Comparative Law Dictionary and bilingual lexicons
243 (2d ed. Les Edition Yvon Blais , 1991)
18
William Tetley , Mixed Jurisdiction: Common Law v. Civil Law (Codified and Uncodified)(McGill University , Unidroit Law Review , 1999)=

13

systematized and structured and relies on declarations of broad, general principles,
often ignoring the details.19

Common Law 20
Common law is the legal tradition which evolved in England from the eleventh
century onwards. Its principles appear for the most part in reported judgments, usuallyof the higher courts, in relation to specific fact situations arising in disputes which
courts have adjudicated. The common law is usually much more detailed in its
prescriptions than the civil law. Common law is the foundation of private law, notonly for England, Wales and Ireland, but also in forty-nine U.S. states, nine Canadianprovinces and in most countries which first received that law as colonies of the British
Empire and which, in many cases, have preserved it as independent States of the
British Commonwealth.

Differences in Source, Concept, and Style Civil Law and Common Law
Common Law and Civil Law have a lot of main characteristic differences aspect oflaw 21. In recently days this legal system cannot replacing by each other but only
mixed in certainty modified conditions. In

mainissues there are some ofInternational Conventions cannot enforced because conflict of civil Law and Common
Law regarding Jurisprudence. Where the civil law countries have refused enactingwith previous Common law judges decisions or Jurisprudence.
a. Jurisprudence and Doctrine. A major difference between the civil law andcommon law is that priority in civil law is given to doctrine (including the19

See Id.p683.
See.Id.p684
21
See.Id p701
20

14

codifiers reports) over jurisprudence, while the opposite is true in the common
law. This difference in priority can be explained by the role of the legislator inboth traditions. French civil law adopts Montesquieu's theory of separation of
powers, whereby the function of the legislator is to legislate, and the functionof the courts is to apply the law. Common law, on the other hand, finds injudge-made precedent the core of its law.
b. Doctrine Function. The civil law doctrine's function is to draw from thisdisorganized mass (cases, books and legal dictionaries) the rules and theprinciples which will clarify and purge the subject of impure elements, andthus provide both the practice and the courts with a guide for the solution ofparticular cases in the future. The common law doctrine's function is moremodest: authors are encouraged to distinguish cases that would appear
incompatible to a civilest, and to extract from these specific rules. There is apoint where the common law author will refuse to draw specific rules thathave no policy basis and will criticize openly absurd judgments.
c. Doctrine Style. The common law author focuses on fact patterns. He or she
analyzes cases presenting similar but not identical facts, extracting from thespecific rules, and then, through deduction, determines the often very narrow
scope of each rule, and sometimes proposes new rules to cover facts that have
not yet presented them selves. The civilist focuses rather on legal principles.
He or she traces their history, identifies their function, determines their
domain of application, and explains their effects in terms of rights andobligations. At this stage, general and exceptional effects are deduced. Apartfrom requiring some statutory analysis, determining the area of application ofa principle involves some induction from the existing case law, while15

delimiting exceptions involves some deduction.

d. Jurisprudence Function. In Common law jurisprudence sets out a new specificrule to a new specific set of facts and provides the principal source of law,while civil law jurisprudence applies general principles, and that is only asecondary source of law of explanation.
e. Style of Law Drafting Civil law codes and statutes are concise (lestylefranfais), while common law statutes are precise (le style anglais).
Indeed, civil law statutes provide no definitions, and state principles in broad,general phrases. Common law statutes, on the other hand, provide detailed
definitions, and each specific rule sets out lengthy enumerations of specificapplications or exceptions, preceded by a catch-all phrase and followed by ademurrer such as notwithstanding the generality of the foregoing.
f. Appointment of Judges Common law judges, who are called to play animportant role in deciding what the law is, are appointed from amongexperienced practicing lawyers. Civil law judges, whose main function is
adjudicating, are appointed fresh from specialized schools.
g. Forum Non Conveniens, Forum non conveniens is the common law principle
whereby a court, which has jurisdiction to hear a claim, refuses to do so,
because it believes another court of another state also has jurisdiction to hear
the claim and can better render justice in the circumstances. This principle was
unknown to civil law courts, which are often required by the constitutions of16

their respective countries to hear an action, although they may suspend it22

Chapter 2 : Bankruptcy Policy on Cross Border Insolvency by Japan, South
Korea, Indonesia, Thailand, Philippine, Malaysia, Singapore,
European Union and USA
2.1. Japan Bankruptcy Policy
In beginning of 1990 Japanese policy on Cross Border Insolvency had been critiquedby many lawyers, because it had refused to recognize the effect of foreign insolvency
proceedings in Japan, and also refused the effect of local insolvency proceeding inforeign states23. However the amendment of Insolvency laws was not so easily put on
legislative agenda. But finally Japanese government decided at last to radically reformthe insolvency legislation.24 Then the work of reform was started in October 1996 ,while the International standard of this problem had been just coming into existence ,namely the Project UNCITRAL Model Law on Cross Border Insolvency 25.
In order to see the Japanese changing policy on bankruptcy law such as adoption of
the Model Law, Raj Bhala26 have point of view reasons that there is a larger context
to consider, namely, the reaction of the international business and legal community.
Foreign creditors would applaud the move. They might interpret it as signaling a morefavorable business climate, and react by extending more credit, or credit on easier22

See.Id .p710

23

See. Yamamoto, Kazuhiro . “ New Japanese Legislation on Cross Border Insolvency
compared with UNCITRAL Model Law at.1. see also. Shinichiro Takagi (tosan ho no kaisei to unyo,
Shoiji Houmo , 2000) at 74.
24

See .Id.

25

See. Id. See also Homu-sho minjikyoku sanjikansitsu , Tosan-hosei ni kansuru kaiseikentojiko (Shoji Homu Kenkyukai , 1997)
26

Bhala, Raj.Supra .Note1. at 162.

17

terms, to Japanese debtors. No doubt Japanese debtors would welcome the increased
liquidity. As for the international legal community, might it not see Japan as taking
out leadership on international insolvency reform , especially the first Asian Country.
Japan's experience, both good and bad, with international insolvencies demonstrates
why the modified universal framework should be the paradigm of cross-borderinsolvency. Modern Japanese practice shows first that a modified universal approachis possible in today's world. The Japanese cases also highlight the benefits of allowinga regime to be supple enough to accommodate systemic modifications designed forthe actual circumstances. Finally, Japanese experience illustrates the inequities andinefficiencies that occur under a territorial regime. In short, Japan shows that themodified universal approach has all the elements of an attractive paradigm
efficiency.27
Japan law structure in order to bankruptcy matters 28:
1. Traditionally Procedures
Individual and Corporate bankruptcy on Bankruptcy Law (Tosan ho Law No.
71, 1992) and Special Liquidation Commercial Code (Sho ho Law No.48
1899).
2. Reconstruction-Type Procedures
Civil Rehabilitation Law (Minji saisei ho Law No.225, 1999 amend to Law
No.128, 2000).
Corporate Arrangement Commercial Code (Sho ho Law No. 48, amended27

Anderson. Kent. Supra Note.at 765.

28

Maharani, Arindra . Arindra Maharani SH. Tinjauan Hukum terhadap penerapan Instrumen
Hukum INternasional dalam pengaturan kepailitan lintas batas di Indonesia, Singapura, Malaysia,
Thailand, Korea Selatan dan Jepang. Skripsi, Fakultas Hukum Universitas Indonesia Juli 2011. At 70

18

1938).
New Corporate Reorganization Law (Kaisha Kosei ho Law No. 154, 2002).
3. Special Procedures
Civil Conciliation Law (Minji chotei ho Law No. 222, 1951) .
Special Mediation Law (Tikutei saimu to no chosei no sokushin no tame no
tokutei chotei ni kan suru horitsu Law No. 158, 1999).
Special Procedures for Reorganization on Financial Institutions Law (Kinyu
kikan no kosei tetsuzuki no tokurei to ni kan suru horitsu Law No.95, 1996) .
4. Separate Statue of Cross-Border Insolvencies)
Law on Recognition and Assistance For Foreign Insolvency Proceedings(Gaikoku tosan shori tetsuzuki no shonin enjo ni kan suru horitsu Law No.129 ,
2000).

Japan Policy on Recognition and Enforcement of Foreign Bankruptcy
Proceeding
Under territoriality principle on Japan’s Insolvency law regime, it ought not to comeas a surprise to learn that Japanese Courts neither recognize nor give effect to foreign
insolvency proceedings or judgments with respect to property situated in Japan .
Base on article 3(2) Bankruptcy Law 29 put it :“ a bankruptcy adjudged in foreign country shall no be effective with respect toproperties existing in Japan”

But in 1981, there is a Jurisprudence, that Japanese courts have not turned a deaf ear
to the rising chorus of criticism of the territoriality principle and its deployment inJapan. For example, in 1981, the Tokyo High Court held that the territorial provisions
29

Bankruptcy law (Hasan Ho) Law no 71 of 25 April 1992 Translated in English .

19

of the Bankruptcy Law were simply intended to limit the general staying effect offoreign proceedings, and did not deny a foreign trustee’s rights to manage the debtor’s
assets in Japan.30 Article 3 paragraph 2 of the Bankruptcy Law provides only that
foreign bankruptcy adjudication does not automatically have an effect, in particulareffect of collective execution, to the debtor’s property. It does not necessarily meanthat the court must ignore the foreign bankruptcy itself or must deny the right of theforeign administrator to manage and dispose of the debtor’s property which is grantedby the law of the foreign country.

Accordingly, under certain circumstances,

Japanese courts may allow a foreign trustee to administer the debtor’s assets locatedin Japan.31
Japan is not likely to adopt the Model Law as a whole provision by provision. The
wording of and concepts embedded in, the Model Law are appropriate for Anglo –American common law system, then they do not fit so easily into the Japanese Legalsystem 32. But in order to adopted, The Japanese official and legal scholars will haveto import the Model Law only after carefully examining each and every provision at
the border and making adjustments or additions, deletion, and the like to fit in theJapanese legal context.33

30

Bhala, Raj International Dimension of Japanese Insolvency Law (Monetary and Economic
Studies , 2001).at.162 See.also. Soichi Tagashira Intraterritorial Effect of Foreign Insolvency
Proceedings: An Analysis of Ancillary Proceeding in United Staes and Japan. At 9. In the case, a Swiss
trustee was allowed to litigate the rights of a foreign debtor, a Swiss corporation, in Japan. A Japanesecreditor had arrested a registered trademark of the Swiss corporation. In the ensuing Swiss bankruptcy
proceeding, the trustee sought to cancel the action of the Japanese creditor (the arrest). The Tokyo High
Court agreed the trustee had “a right to manage the debtor’s assets in Japan.” Id. at 9; See also
Judgment of 30 January 1981, Tokyo Kosai [Tokyo High Court], 32 Kaminshu 10, 12.
31

Bhala , Raj See.Id.at 163. See. Junichi Matsushita, Present and Future Status of JapaneseInternational Insolvency Law, 33 TEX. INT’L L.J. 71, 72 (1998) at 76-77.
32

Bhala, Raj . International Dimension of Japanese Insolvency Law (Monetery and Economic
Studies , 2001) at 152 ., See.from. Professor Junichi Matsushita , Faculty of Law , Gakushuin
University.

20Under the article 118 of the Japan Code of Civil Procedure provides that a foreign
judgment will be recognized as valid in Japan if (1) the jurisdiction of the foreign
court is recognized under Japanese law or an applicable treaty, (2) the defendantreceived personal service of process or appeared voluntarily, (3) the foreign judgment
does not contravene public order or good morals in Japan, and (4) reciprocity is
guaranteed as regards the recognition of Japanese judgments. Similarly, under Article
24 of the 1979 Law of Civil Execution.34 Japanese courts will enforce a foreign
judgment if these four conditions are met, and that judgment is final. Possibly, these
conditions could be the “talking points” in the early stages of negotiations toward
recognition and enforcement criteria for an international framework. The newJapanese law on recognition of foreign proceeding requires several conditions forrecognizing foreign proceeding. the most important are that of jurisdiction and that of
public order.
Process of recognitions under new Japanese law provides Tokyo district is only
competent for the case of recognitions of foreign proceedings.35
The system of recognitions of foreign proceeding by Japan Judicial decisions. In Point(2) standing to apply recognitions belongs only to foreign representatives and point(3) a foreign representatives appointed upon an interim basis may also apply
recognition of an interim foreign proceeding.36 New Japanese Bankruptcy law haveadopt a judicial decision recognition system which is similar with that of Model Law.

33

Bhala, Raj. See.id .at 153.

34

See.Japan Law No 4 of 1979 .
See.Article 4 on Act on recognition of foreign Proceeding.
36
See. Yamamoto Kazuhiko, New Japanese Legislation on Cross Border Insolvency comparewith the UNCITRAL model law. At.11.
35

21

Japanese law limits the standing of application of recognitions to a foreign
representatives 37.
Related to recognition of an interim proceeding we can recognize some different withmodel law, where Japanese law permits an interim representatives to apply
recognition, but nonetheless it does not permit the court to recognized an interim
proceeding. At all the court is only authorized to order interim measure before theforeign court formally commences the insolvency proceeding and that the foreign
proceeding become recognizable.
2.2. South Korea Bankruptcy Policy
The legal system of Republic of South Korea is civil Law system , that its basis in theConstitutions of the republic of Korea.38 In 1998 started to regulation reform in matterof Bankruptcy. The Debtor Rehabilitation and Bankruptcy Act (DRBA) March 21st2005 have created in which including 4 Act reformed
a. Corporate Reorganization Act
b. The Composition Act
c. The Bankruptcy Act
d. The Act on Rehabilitation of Individual debtor.
Before recognition on UNCITRAL Model Law on CBI have been in Territoriality but
after changed in Universalism. The foreign proceeding recognition not automaticallybut should by request to the court. And the court would decide agree or not to enforce.
And also limited to public policy of the state.

37
38

See.id.
Wikipedia . acces http://en.wikipedia.org/wiki/Law_of_South_Korea.

222.3. Thailand Bankruptcy Policy
Thailand have legal tradition in civil law system. In July of 1997 Thailand lacked
legal procedures to govern restructuring. Over the next two years, lawmakers built
upon Bankruptcy Act B.E. 2483, which provides a framework for liquidation, to detailsuch procedures. This section details some aspects of the legal changes and analyzes
how the legal changes could impact the costs of financial distress. Bankruptcy Act
B.E. 2483 was written in 1940 and amended in 1968, 1983, and 1999. The law covers
liquidation of both personal and corporate entities. It allows creditors to file petitions
enabling a court-designated agent to seize assets, dispose of them, and distribute theproceeds. Kingdom of Thailand have territoriality principle. Foreign Proceedingcannot automatically recognition but should have re-adjudicated in Thailand Court.
The only limitations placed on the jurisdiction of the court of Justice Thailand arewith regard to the execution of a judgment. Thai Judgment are not recognized in othercountries, nor will foreign judgments be recognized in Thailand. Although foreign
Judgment maybe used in evidence , cases must be re investigated in a court of justicein Thailand. Section 177 Thailand Bankruptcy Act 1999, the controlled of property
and the bankruptcy law of other countries has no effect on property in the Kingdom.

2.4. Philippine Bankruptcy Policy
Philippine have a civil law legal system. Territoriality principles have governed by thelaw. In bankruptcy law also applied territoriality principles. The Philippines may be
regarded as using the appeal method 39. In this system, the foreign judgment is in

39 Paper presented at the A.L.A. 5th Conference, Denpaser - Bali, 7 October 1989.
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS AND ARBITRAL AWARDS

23

principle enforceable. The grounds for refusing judgment seem to be modeled after
the rules of the United States. However, by accepting that clear mistakes of fact orlaw could also form a ground for refusing to enforce a foreign judgment, it could besaid that a winning party must in effect "appeal" from his foreign judgment in order tosecure its enforcement in the Philippines. Therefore this method could be classified
more as a non-enforcing rather than as an enforcing one. The Philippine law on
FINANCIAL REHABILITATION AND INSOLVENCY ACT(FRIA) RA 10142
2000.
2.5. Malaysia Bankruptcy Policy
Malaysia have similarity legal system with Singapore, applied Common Law fromunited Kingdom. Malaysia adopted territorial principle for foreign bankruptcy
proceeding or foreign Judgment should be re adjudicated in Malaysia Court. But
Malaysia have bilateral recognition which enacted in Malaysian Bankruptcy Act .
Agreement regarding mutual recognition and enforcement of cross border bankruptcy
between Singapore and Malaysia have stated in Malaysia Bankruptcy Act Article
104(3).
2.6. Singapore bankruptcy Policy
The English origin of the Singapore legal system is due to the reception of English
law during and even after the colonial era. Singapore adopted common law systemfrom British Colony. A foreign judgment has no direct operation in Singapore.
However, foreign judgments may be recognized and enforced either at common law
or under statute. Court orders obtained in foreign insolvency proceedings can only be
enforced in Singapore if the Singapore courts recognize these proceedings. Although
IN THE ASEAN REGION

24

they retain a discretion in recognizing these proceedings, it is generally accepted that
Singapore courts adopt a pragmatic approach in dealing with cross-border insolvency
cases and appear to be increasingly willing to recognize and enforce foreign
insolvency proceedings40. The Principles International Comity generally has led
common law countries to either pass statutes or enter into treaties that provide for therecognition of judgments rendered in other countries41.
Singapore's conflict of law provisions, rooted in English common law, provide an
opportunity for equal creditor treatment; Singaporean courts temper jurisdictional
control over assets located within Singapore by recognizing the interests of foreign
creditors and bankruptcy representatives while concurrently seeking cooperation withforeign courts. Under article 151 jo 152 Singapore bankruptcy Act 1995 , foreign
proceeding and foreign judgment cannot entry into force automatically. Territoriality
principles applied where should be re adjudicated in Singapore Court , limited to
public policy, and there is reciprocity agreement. Both of Singapore's insolvency
statutes (corporate and individual) vest all of the debtor's property with the equivalentof a trustee in bankruptcy. Singapore's Bankruptcy Act clearly states that it is to haveeffect over both movable and immovable property, whether situated in Singapore orelsewhere. The Act also provides for reciprocal assistance between the courts of
Malaysia and Singapore under article 102 Singapore Bankruptcy Act.

2.7. Indonesia Bankruptcy Policy

40

Lee Kiat Seng , “Cross-Border Insolvency Issues,” http://www.lawgazette.com.sg/20094/feature2.htm,
41
Gross, “Foreign Creditor Rights: Recognition of Foreign Bankruptcy Adjudications in
the United States and the Republic of Singapore

25The Indonesian legal system is a Civil Law42 system rather than a Common Law
system. The Common Law System is found chiefly in Australia, England, America
and other former British colonies such Singapore, Malaysia and Hongkong). The
Indonesian legal system is derived from French and German models, and The Dutch
Colonial have applied it to Indonesian as Dutch colony ( 320 years). For example,
Civil Law systems do not use juries. Instead, a panel of three judges makes decisions
as to guilt or innocence. One of these judges is the Chair (ketua) and is usually moresenior than the other two judges.

Typically, the judges produce a single, joint

judgment (Putusan). It is virtually unknown for a judge (hakim) to dissent from thedecision of the other two members of the panel and dissenting judgments are rarely
produced and never released (except, recently, in the Commercial Court (Pengadilan
Niaga)).

Typically, Civil Law judgments are much shorter than Common Law

judgments. In Indonesia, for example, the judgment may be only a few pages. In
major cases, judgments tend to be long, of a length to be expected in a Common Law
Appeal Court, but this is usually because the Courts often summaries all the evidence
in the judgment (This is not usual in Common Law judgments). Legal reasoning todistinguish previous cases and so forth is relatively rare, because Civil Law systems
do not have a system of precedent.
Precedent or Jurisprudence in Common Law systems, is the principle that previous
cases with similar facts on an identical point of law will bind courts of equal or lower
status. In Civil Law systems, courts are not bound by decisions of courts at the samelevel or higher. This means that there is little need for law reporting in Indonesia andcertainly not for published authoritative sets of judgments. Some, limited collections

42

Lindsay, Tim. Indonesia: Bankruptcy, Law Reform & the Commercial Court, (ed.) (2000),
Desert Pea Press, Sydney.

26

of judgments are published (for example, Yurisprudensi) but they are ad hoc in nature.
In fact, statements as to preferred interpretation or policy issued by the Supreme Courtin the form of surat edaran (circular letters), rather like practice notes in the Common
Law System, tend to be more influential than previous decisions, even of the Supreme
Court. Another key distinction between Common Law and Civil Law systems is that
Civil Law systems are ‘inquisitorial’ in nature while Common Law systems are‘adversarial’. This means that in Common Law systems the judge acts as an impartial
referee while the parties present their witnesses in an attempt to convince a jury or, inmost cases, the judge. The judge generally does not ask questions of witnesses (saksi)
and is usually active only in enforcing the rules of evidence and procedure.

Indonesia Bankruptcy Law
Before 1998 in Indonesia enacted bankruptcy law from Dutch Colony 1906 (name:
Faillissements-Verordening, Staatsblad 1905:217 juncto Staatsblad 1906:348). In
1998 enacted Bankruptcy Law No 1 Year 1998 andAmendment with Bankruptcy

Law No 37 Year 2004.
Statistic Bankruptcy Cases in Central Jakarta Commercial Court Year 1999 -2009
No
1
2
3
4
5
6
7

Decission
Bankruptcy
PKPU (reorganization)
Rejected
Withdrawal
AccordUndecided
Unknown

Cases
233
54
233
112
2
8
5

Precentage (%)
36.01
8.35
36.01
17.31
0.31
1.24
0.77

Total

647

100

27

Source: Central Jakarta Commercial Court43
Number of Bankruptcy cases per Year 1999 – 2009 44

In year 1999 is the highest number of cases because accumulation of Indonesian
economic crisis and a year after first establishing Bankruptcy Law 1998 No. 4 . Next
New Amendment of Bankruptcy Law in year of 2004 No. 37.
Indonesia Bankruptcy Policy on Recognition of Foreign Insolvency Proceedings
Under the article 18 AB (Algemene Bepalingen van Wetgeving), plenty said :“ the form of every action is determined by the law of the country where the act ordo” (locus regit actum)”.45
Under article 436 RV regarding recognition and the enforcement of foreign Judgment( bankruptcy) :43

Official website central Jakarta Commercial Court Indonesia , Access by March 23rd , 2012
time 22:23 JST http://pn-jakartapusat.go.id/.
44
See.Id.
45
Maharani, Arindra , at 54.

28

Except in cases specified by Article 724 Commercial Code and otherlegislation, can not be implemented the decisions spoken by foreign judges orthe courts a foreign court in the Republic of Indonesia.

The presence of the prohibition to carry out a foreign judgment in the RI servetargeted because of perceived as a violation of the principle of sovereignty Republicof Indonesia as their country. It is due to the enactment or principle of the sovereignty
principle of territorial that is held in Indonesia, which requires that decision set inforeign countries, can not directly implemented in other regions on its own strength.46
In other articles of Bankruptcy law in Indonesia, adopt a different principle(territoriality), since Indonesia adheres to the principle of universality of the existenceof the bankruptcy properties the debtor in overseas.
It was based on provisions in the Act No.37 of 2004, namely as the following47:
a. Bankruptcy Law under article 21, the bankruptcy estate the debtor covering
the entire wherever debtors assets persistence (overseas). In this case means
includes total assets of insolvent debtors inside and outside the country;
b. Pursuant to section 212-214 UUK-PKPU which had to do imbursement by thecreditor or any person, in a state as in articles.

2.8. European Union
Most of the European Union members states have civil law legal traditions. But
especially for cross border insolvency EU have already adopted within automaticallyrecognition of foreign proceeding in cross border insolvency among the members

46

Longdong, Tineke Louise Tuegeh, Asas Ketertiban Umum dan Konvensi New York 1958,(Bandung: PT. Citra Aditya Bakti, 1998), at.187.
47

Maharani Arindra supra.note.at 62.

29

states. EU established the Convention on Insolvency Proceeding by EU Councils andsigned in November 23rd , 1995.
The system in written under article 3 jo article 16 :Article 3 International Jurisdiction:(1) the court of the country state within the territory of which of the center of the
debtors main interest is situated shall have jurisdiction to open Insolvency
proceedings.
(2) The effect of these proceeding shall be restricted to the assets of the debtors
situated in territory of the latter contracting state.
Article 16 Principle point (1):any judgment opening insolvency proceeding leaded down by a court of acontracting state , which has jurisdiction pursuant to article 3 shall berecognized in all the other contracting state from the times that it become
effective in the state of the opening proceeding.
Article 17 Effect of recognitions(1) the judgment opening the proceeding referred to in articles (3) shall with nofurther formality produce the same effect in any other contracting state as
under the law of the state of the opening of proceeding.
(2) The effect of the proceeding referred to in article 3(2) may not be challenged
in other contracting state.
Under article 16 and 17 should be automatically recognition without any further
complicated requested .
2.9. USA Bankruptcy Policy
United State of America have legal tradition in Common Law system such as United
Kingdom. In regarding matter of recognition of foreign proceeding on cross border
Insolvency have created chapter 15 on US Bankruptcy Act. Chapter 15 is a newchapter added to the Bankruptcy Code by the Bankruptcy Abuse Prevention andConsumer Protection Act of 2005. It is the U.S. domestic adoption of the Model Law
on Cross-Border Insolvency promulgated by the United Nations Commission on
International Trade Law ("UNCITRAL") in 1997, and it replaces section 304 of the
Bankruptcy Code. Because of the UNCITRAL source for chapter 15, the U.S.
interpretation must be coordinated with the interpretation given by other countries that30

have adopted it as internal law to promote a uniform and coordinated legal regime forcross-border insolvency cases.
Under chapter 11 U.S.C. § 1509. Once recognized, a foreign representative may seek
additional relief from the bankruptcy court or from other state and federal courts andis authorized to bring a full (as opposed to ancillary) bankruptcy case. Under Chapter
11 U.S.C. § 1517 “ Immediately upon the recognition of a foreign main proceeding,the automatic stay and selected other provisions of the Bankruptcy Code take effectwithin the United States.”

Table : Jurisdiction and Recognition Countries
Degree / level of recognitions
Jurisdiction
Principle

Universalism

One
Automatic
Recognition

Two
Recognition by
RequestThree
Recognition
Bilateral Act

Four
Recognition
Reciprocity
agreement , readjudicatedSingapore
Malaysia

Indonesia
ThailandPhilippine

UNCITRAL Model
Law CBI
European Union
United States

Universalism
ModifiedJapan
South Korea

Territoriality

Table : Legal Tradition and Recognitions Countries
Degree / level of recognitions
Legal
TraditionOne
Automatic
Recognition

Two
Recognition by
RequestUNCITRAL Model
Law CBI

Three
Recognition
Bilateral Act

Four
Recognition
Reciprocity
agreement , readjudicatedSingapore
Malaysia

Common Law
United States
Civil Law

European Union

Japan

Indonesia

31South Korea

ThailandPhilippine

CHAPTER 3 : CONCLUSIONS
Conclusions
1. Globalization of economy has thrown new challenges insofar as economic law
and economic politic are concerned. Since the world shrinking in economic
terms and is describe as one world, laws governing the economic activities
also need to be harmonize to achieve by having similarly principle universality
and possible to have recognition of foreign proceeding automatically or withsome condition (by request). Realizing this need UNCITRAL Model Law on
Cross Border Insolvency should be adopt by countries such Indonesia,
Thailand, Philippine, Malaysia and Singapore.
2. Legal traditions each countries might not established barrier indirectly adopt
the UNCITRAL Model Law on CBI but with similarity legal tradition(common law) more suitable and easier considering law maker, philosophy oflaw in written or condition of mindset of the Judges made law.

Recommendation for Indonesia
From the above provisions can be seen that Bankruptcy Indonesia against insolvent
debtors assets, adhere to the principle of universality. The rules of private
International law in Indonesia do not recognized a bankruptcy procedure commenced32

in a foreign jurisdiction against an Indonesian debtor, except where the country
concerned and Indonesian have entered into a bilateral agreement or a regional orInternational convention that recognized such bankruptcy proceeding in foreign
jurisdictions and their decisions.
This means that unless otherwise banned by country in which the assets are located,assets of the bankrupt debtor located abroad are part of the bankrupt debtor’s assets.
The branches or subsidiaries of Foreign companies registered in Indonesia cannot be
declared bankrupt through the Indonesian Commercial Court . However , under theIndonesian legal system , such companies , acting either through their foreign offices
or their Indonesian subsidiaries or branches, may file a bankruptcy petition before theCommercial Court against any Indonesian nationals or entities. Such companies may
also file for suspension of payment with regards to Indonesian creditors and seek
ratification of a composition plan from the Commercial Court.
Standing of a foreign Insolvency Representative to Litigate in Indonesia.
Indonesia will not recognize or enforce orders and judgments resulting from foreign
bankruptcy procedures. However, such orders and judgments may be recognized as
supporting evidence in Indonesian bankruptcy proceeding. As a consequences of thenon recognition and non enforceability of foreign bankruptcy orders and judgments.
The Indonesian legal system does not recognize bankruptcy administrator ( e.gtrustee, liquidators, receivers) appointed under bankruptcy procedures of othercountries.
Possibilities Adoption from Japan CBI Model as a Benchmark

33

The term benchmarking was first used by Cobbler (shoemaker) to measure people's
feet for shoes. They would place someone's foot on a "bench" and mark it out to makethe pattern for the shoes. Benchmarking is used to measure performance using a
specific Indicator (cost per unit of measure, productivity per unit of measure, cycle
time of x per unit of measure or defects per unit of measure) resulting in a metric ofperformance that is then compared to others.48
Benchmark is define as a point of reference from which measurements may be madeor something that serves as a standard by which others may be measured or judged.49.
Japan and Indonesia have been using a similar civil law system. By this legal system
is more match and easier than common law system (UNCITRAL Model Law 1997 ).
Indonesia have possible to make Japan Cross Border Insolvency as a point ofreference / standard by which Indonesian adoption of Cross Border Insolvency may
be measure or made on Bankruptcy policy reform. The non automatically scheme
model recognition and Universality Jurisdictions with limitation should be following
by Indonesia Bankruptcy policies reform.
Indonesia should adopted Universalism Principle regarding Recognition andenforcement of foreign Bankruptcy proceeding and judgment. This is under recently
practice circumstances in condition Indonesia part of Global Market, and had practiceon Cross Border Investment. Indonesia actually have double standard jurisdiction
principles where territoriality for recognition and enforcement of foreign bankruptcy
proceedings and universalism use for the existence of the bankruptcy properties the48

Wikipedia . http://en.wikipedia.org/wiki/Benchmarking , Access on March 25th 2012, 10:23

am JST
49

Mirriam–Webster Dictionary, website www.merriam-webster.com /dictionary/ benchmark
access: On March 25th 2012 , 10:30 am JST.

34

debtor in overseas.

Refferences
Raj Bhala , The International Dimensions of Japanese Insolvency Law, InstituteMonetary and Economic Studies February 2001 . the article wasprepared while the author was a visiting scholar at The Institute for
Monetary and Economic Studies, Bank of Japan in July 1999.
Articleaccessdownloadatwebsite:http://www.imes.boj.or.jp/research /papers/english/me19-1-15.pdf
on April 8th 2012 .
World trade Organization officials website : http//www.wto.org
http://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm
Black Laws Dictionary, Sixth edition . St Paul, Minnesota : West publishing Co,
1990.
Roman.Tomasic Insolvency Law In The East Asia , (England: Ashgate Publishing
Limited, 2005)
Phillip.R. Wood Principle of International Insolvency , (London: Thomson Sweet &Maxwell , 2007 )UNCITRAL Model Law on Cross Border Insolvency: The Judicial Perspective .
United Nation New York , February 2012 .
Preamble to the UNCITRAL Model Law 1997
United Nations (a), Model Law in Cross – Border Insolvency with Guide toEnactment, (New York: United Nations Publishing, 1997), at 3.
Raj Bhahal,International Dimension of Japanese Insolvency Law (2012) at 151. See.
Also . Andree J. Berends , UNCITRAL Model Law on Cross Border
Insolvency , 6 Tulane.J.Int’l & Comp.L.(1998).
http://www.uncitral.org/uncitral/en/uncitral.texts/insolvency/1997Model_status.html
35

Kent Anderson, The cross border Insolvency paradigm: a defense on the modified
universal approach considering the Japanese experience . U.pa.
J.Int’l con.L. See. E.g.. Lynn M.LoPocky. Cooperation inInternational Bankruptcy: A Post-Universalist Approach, 84
CORNELL L. REV. 696 (1999).
Kazuhiro Yamamoto,. “ New Japanese Legislation on Cross Border Insolvency
compared with UNCITRAL Model Law at.1. see also. Shinichiro
Takagi (tosan ho no kaisei to unyo, Shoiji Houmo , 2000)
Homu-sho minjikyoku sanjikansitsu , Tosan-hosei ni kansuru kaisei-kentojiko (Shoji
Homu Kenkyukai , 1997)
Arindra Maharani SH. Tinjauan Hukum terhadap penerapan Instrumen Hukum
INternasional dalam pengaturan kepailitan lintas batas diIndonesia, Singapura, Malaysia, Thailand, Korea Selatan dan
Jepang. Skripsi, Fakultas Hukum Universitas Indonesia Juli 2011.
Bankruptcy law (Hasan Ho) Law no 71 of 25 April 1992 Translated in English .
Soichi Tagashira Intraterritorial Effect of Foreign Insolvency Proceedings: An
Analysis of Ancillary Proceeding in United States and Japan.
Judgment of 30 January 1981, Tokyo Kosai [Tokyo High Court], 32 Kaminshu 10,
12.
Junichi Matsushita, Present and Future Status of Japanese International Insolvency
Law, 33 TEX. INT’L L.J. 71, 72 (1998)
Lindsay, Tim. Indonesia: Bankruptcy, Law Reform & the Commercial Court, (ed.)(2000), Desert Pea Press, Sydney.
Official website central Jakarta Commercial Court Indonesia , Access by March 23rd ,2012 time 22:23 JST http://pn-jakartapusat.go.id/.
Tineke Louise Tuegeh, londong Asas Ketertiban Umum dan Konvensi New York1958,
(Bandung: PT. Citra Aditya Bakti, 1998),
Mirriam–Webster Dictionary, website www.merriam-webster.com /dictionary/benchmark access: On March 25th 2012 , 10:30 am JST.

36

37