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アセアン後発諸国における倒産法改革 : 国際開発機関のモデル法推進の顛末

Insolvency Law Reforms in ASEAN Developing Countries: An Epitome of the Model Law Promotion by International Donors

国際協力論集

28(2)

65-101

神戸大学大学院国際協力研究科

2021-01

2021-02-08

Since the Asian Currency Crisis in 1997, the international development organizations have promoted the model insolvency law based mainly on the Chapter 11 of the U.S. Federal Bankruptcy Code featuring the “debtor rescue culture.” With an aim to identify the influence of such donor model on the legal designs and policy choices of the recent insolvency law reforms in ASEAN developing countries, namely the 2014 Vietnam Bankruptcy Law, the 2020 Lao Rehabilitation and Bankruptcy of Enterprise Law, and the 2020 Myanmar Insolvency Law, all of which were the results of the drafting support extended by the World Bank and/or the Asian Development Bank, this article first reviews the trends of laws and theories on insolvency law in developed countries for the purpose of obtaining a methodological framework for international comparison, and then applies it to understand the characteristics of the insolvency law reforms in Vietnam, Laos and Myanmar. The major finding is the obvious influence of the donor’s debtor rescue model in all target insolvency laws, with certain exceptions seemingly intentionally included in the last stage of each enactment process. Given the reasons why such exceptions to the donor model were needed to be included in each legislation, this article concludes with the suggestion to prioritize the legal design （category-III in this article which corresponds to the UK Scheme of Arrangement and the Civil Rehabilitation Law in Japan） to encourage the constructive negotiation between the debtor and the creditors in sought for the most economically effective solution, while separately maintaining another procedure for the too-big-to-fail scale bailout cases for a redistribution policy purpose （category-II in this volume which corresponds to the US Chandler Act in the time of post-Great Depression in 1930s and the Corporate Reorganization Law in Japan）. In order to establish an insolvency law regime which can meet with the need of promoting the corporate finance in developing countries, the debtor rescue culture （category-I in this article） should not be compelled beyond certain situations with unpredictable difficulties such as the case of the COVID-19 pandemic. Insolvency law reforms in ASEAN developing countries teach us the needs of strengthened local ownership with accurate information and dialogue, and also the self-restraints of donor involvement so as to make the legal cooperation truly beneficial for the development of local socio-economy.

紀要論文