(R)evolution of the insolvency law in a globalized economy

Author:Ionel Didea, Diana Maria Ilie
Pages:91-112
SUMMARY

This study aims at highlighting the image of insolvency law as it was outlined, ascendingly developed and reached the remodelling stage in an international economic context, in a globalization era where the approach of interdisciplinarity and transdisciplinarity is no longer only mere philosophical theory, but is manifested instead through the interference and inter-connexion between fields of... (see full summary)

 
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(R)evolution of the insolvency law in a globalized economy
Professor Ionel DIDEA1
PhD. student Diana Maria ILIE2
Abstract
This study aims at highlighting the image of insolvency law as it was outlined ,
ascendingly developed and reached the remodelling stage in an international economic
context, in a globalization era where the approach of interdisciplinarity and
transdisciplinarity is no longer only mere philosophical theory, but is manifested instead
through the interference and inter-connexion between fields of law and dimensions of
political, economic and social factors, the need to identify a coagulating fa ctor through the
so-called harmonization of the norms of law, of the jurisdiction and of the internation al, EU
and regional practices, as well as a reporting of the best practices in the field becoming key
factors in the qualitative management of insolvency risks, an institution which is
individualized, at the same time, in a new field of law, an autonomous law that has gone
beyond the borders of commercial law and has also expanded over individuals and territorial
and administrative units, law present in interference with the mon ist system implemented by
the new Civil Code but also driven, in its evolution, by principles promoted at European
Union level, and also at international level.
Keywords: insolvency, globalization, reorganization, interdisciplinarity,
comparative law, international economic order, international trade.
JEL Classification: K22, K33, K35
1. Introduction. Let’s “open the gates” of an interdisciplinary area -
insolvency. A social-legal-economic “coagulation”
Globalization has created a multidisciplinary, interdisciplinary legislative
universe, the legal regime of insolvency evolving i n this manner of legislative,
economic and social cohesion, by creating a complete and complex framework that
has gone beyond the boundaries of the traditional branches of law by incorporating
social, economic, administrative, and management factors, law showing a flexible
legal sizing and management, adapted to the needs that are required in times of
economic crisis, global conflicts and problems. This phenomenon allows us to
perform a transparent analysis of functional insolvency practices and implicitly of
reorganization, recovery, debt remittance, providing alternative models in outlining
1 Ionel Didea - Faculty of Economics and Law, University of Pitesti; Faculty of Law Doctoral School,
„Titu Maiorescu” University, Bucharest, Romania, prof.didea@yahoo.com.
2 Diana Maria Ilie Law Doctoral School, „Titu Maiorescu” University, Bucharest, Romania,
dianamaria.ilie@yahoo.com.
92 Juridical Tribune Volume 9, Issue 1, March 2019
and substantiating a viable law, which is nonetheless adapted to the economic,
political, cultural and organizational state of each country, which is why we are
benefiting today from the cultivation of a system of law that has gradually abandoned
the position of autonomous, closed system and has inevitably headed towards an
open, flexible, integrative, interdisciplinary, complex, specific system, which are, as
a matter of fact, characteristics of our century, a century of complexity.
It is very interesting how, for example, certain prestigious universities in the
UK, such as the University of Warwick, established centres specializing in Global
Economy - The Centre for Law, Regulation and Governance of Global Economy
(GLOBE) which acts as a platform for research and debate between students,
professors from several university centres, national and international organizations
and institutions, in an interdisciplinary manner that targets social, economic and
political areas such as international business law, the international law on foreign
investments, intellectual property rights at global level, financial law, international
competition, international arbitration, etc.3
The field of insolvency is on the agenda of the interests of international and
Union bodies and institutions, such as the World Bank, the Organization for
Economic Cooperation and Development, the United Nations Commission on
International Trade Law, the World Trade Organization, the European Commission
and the European Parliament, and analysis reports reflecting insolvency around the
world, statistics, model framework regulations, courses of action, legislative and
economic solutions, have recently been published, which we will approach in this
research, the institution of insolvency being restructured in almost every law system,
a culture of salvation being promoted and developed as a priority the second
chance, the reorganization, the fresh start and elimination of the bankruptcy stigma
by prioritizing new interests in the context of economic and social cohesion
Romania is inevitably part of this process of integration and reflection of its
own identity in a European and global context, globalization succeeding in
eliminating many of the symbolic boundaries between the legal culture promoted by
Common Law, the one promoted by our system deeply marked by the Romano-
German system, but also by the legal system outlined by the realistic American
trends, thus allowing the law to become the result of self-adaptation of the society,
and not just of the creation of the state. At internal level, the insolvency law seems
to have been able to absorb, and embody the directions, and principles promoted in
a national and international context, benefiting, in recent years from an expansion, a
legislative revolution in this field. In an integrative vision, Law no. 85/2014 on
Insolvency Prevention and Insolvency Proceedings, deemed in the specialized
literature to be a genuine Insolvency Code, including in a single corpus of legislation,
the general legislation applicable t o all economic operators, the special legislation
applicable to credit institutions and companies in the insurance field, to groups of
companies, as well as regulations on cross-border i nsolvency, to which the
insolvency prevention instruments are added, more specifically the ad hoc mandate
3 https://warwick.ac.uk/fac/soc/law/research/centres/globe/about/, date of the last visit 05.11.2018.

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