A restructuring of the native, and more importantly, relocation of the assets of troubled Asian countries to the U.S. or other venues admitting themselves to a formal collateral system can be done in the context of parallel foreign and U.S. bankruptcy proceedings. Care would have to be taken to structure the migration or transmutation of assets in a way that avoids both potential civil and criminal liability in some jurisdictions from alleged fraudulent conveyances. As a predicate to lending to a troubled Asian multinational, the debtor would sell assets in locations not admitting themselves to the full protections of formal lien enforcement and migrate those assets to more formal commercial jurisdictions such as the U.S. Mergers with affiliates and foreign subsidiaries could also be considered to accomplish transmutation of assets. The full advantage of U.S. law, with its potential extraterritoriality in appropriate factual circumstances is the ability to centralize and focus the reorganization of Asian multinational corporate families in the forum offering the most comfort to lenders and buyers and, if sufficient care is taken, to both foreign and U.S. creditors. At the same time, the flexibility of the American system, its concern with comity and willingness to engage in parallel proceedings should serve to create the sense of certainty which should make U.S. bankruptcy proceedings the most common focal point for the restructuring of Asian multinationals with large international creditor exposure.
Ethics lags behind technology.
Politics lags behind economics. Democratic law lags behind all as it is by its nature reactive, even in the revolutionary context. More specifically, economics, politics and law have all lagged behind the issues arising from multinational insolvency. However, in the absence of an international concordant, market forces manifest themselves. The market for legitimate restructuring of Asian multinational corporations clearly should, where there are sufficient assets in the U.S., and where practical, gravitate toward the relative certainty and flexibility of a U.S. bankruptcy strategy.