Application of Territorial Principles and Universal Principles in Settlement of Execution of Debtor’s Bankruptcy (Cross Border Insolvency)

DOI

10.2991/978-2-38476-218-7_81How to use a DOI?

Keywords

territorial principle; universal principle; bankruptcy property

Abstract

The problems in cross-border bankruptcy is regarding the implementation of asset confiscation as debtor’s bankruptcy assets located outside the jurisdiction of Indonesia. This is related to the application of the two principles in private international law, namely universal and territorial principles adopted by Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, precisely in Article 21 and Article 264. These two principles are used in the settlement of cross-border bankruptcy cases, considering that there are foreign elements in it that require the principles in private international law to be applied. However, the problem is, the two principles contradict each other where Article 264 explains that the character of the territorial principle only has legal consequences on objects or assets of bankruptcies within the territory of the State of Indonesia, while Article 21 explains that the assets of executed debtors are not limited to territory. This certainly creates legal uncertainty in the settlement of cross-border bankruptcy cases, especially for the execution of debtors’ bankruptcy assets abroad. The research method used is normative juridical with analytical descriptive specifications. There is an alternative in the problem of applying territorial and universal principles in the execution of debtors’ assets abroad. First, the settlement is carried out in cooperation with the State where the assets of the bankrupt company or the bankrupt assets are located, with border insolvency agreements both bilateral and multilateral in the nature of regional agreements. Second, if the cooperation interferes with the commercial court process, it must be reviewed or stopped so that the commercial court process (bankruptcy) continues to run as it should.

Copyright

© 2024 The Author(s)

Open Access

Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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TY  - CONF
AU  - Halida Rahardhini
AU  - Joni Emirzon
AU  - Hasim Purba
AU  - Dedi Harianto
PY  - 2024
DA  - 2024/02/22
TI  - Application of Territorial Principles and Universal Principles in Settlement of Execution of Debtor’s Bankruptcy (Cross Border Insolvency)
BT  - Proceedings of the International Conference On Law, Economic & Good Governance (IC-LAW 2023)
PB  - Atlantis Press
SP  - 489
EP  - 495
SN  - 2352-5398
UR  - https://doi.org/10.2991/978-2-38476-218-7_81
DO  - 10.2991/978-2-38476-218-7_81
ID  - Rahardhini2024
ER  -