International and Domestic Law Aspects of Cross-border Insolvency in Order to Establishing Cross-border Insolvency Regulation in ASEAN: Indonesian Perspective

The increases in cross-border trade has resulted in more companies with assets, business, and presence in multiple jurisdiction. When any of these companies face debt restructuring or insolvency, it confronts a myriad of complex issues in coordinating rescue proposals or winding up the businesses across jurisdictions. Prior to the 1997 economic crisis, insolvency laws in most state economies were generally out of date and irrelevant to the modern commercial needs, particulary the cross-border insolvency matters that has not been well regulated. ASEAN has initiated an integrated economy regional by launching an ASEAN Economic Community on late 2015. It aimed to establish a deeply integrated and highly cohesive ASEAN economy that would support sustained high economic growth and resilience in the face of global economic shocks and volatilities within ASEAN members. Unfortunately, ASEAN member has not prepared a regulation regarding cross-border insolvency matters which could restrains its aim to establish a fully integrated economy regional. Each state members has its own national insolvency laws and proceedings, but none have the schemes that could surpassed the national borders and simplified the procedures. The aspects of cross-border insolvency from both the International law and domestic law of Indonesia is already prepared to deal with foreign proceedings. Both could be adjusted to establish a cross-border regulation in ASEAN. Hence, there should be an in-depth harmonization of cross-border insolvency should be another priority upon ASEAN Economic Community to achieve a fully-integrated economy in ASEAN.


I. INTRODUCTION
Over recent decades, the benefits of globalization have become manifest as numerous multinational corporationsenter intodeals that spanmultiple legal jurisdictions. The insatiable pursuit of economic opportunities and growth reflects how business and trade have become increasingly borderless, as globalization hits every part of the world. As a result, capital and trade can nowflowseamlessly through economies in search of new markets and opportunities, spurred undoubtedly by the execution of bilateral and multilateral trade and investment treaties. Add to those,the formulation of multilateral economic groupings. Yet, it seems insolvency is the furthest consideration when investment decisions are made. 1 Insolvency laws have not sufficiently evolved to dealsatisfactorily with crossborder matters. However, the risks ofrapidly growing, seemingly borderless integrated regional economiestend to be more complicated as the number of parties involved vary, in which corporations engage in arangeof transnational investments and partnerships. It hasobviously resulted in a legal uncertainty that leaves wary both traders and governments who haven't fully consideredthe worst incoming situations, such as business collapse, the lack of legal enforcement against the consequences of globalization, and the inevitable economic meltdown caused by the convergence of markets and economic cycles. Economic or regional integration has become a stepping stone for intergovernmental cooperation. The Association of Southeast Asian Nations (ASEAN) was founded based upon geographic proximity. 2 Their need of an integrated economy turnedtheir geographic and political affinities into economic reliance between member states. It was also a part of theglobal regional movement. 3 External observers have calledthe "hub of regionalism" asthe realization of the ASEAN way. 4 It remains a distinctly political counterbalance and an expectation of the degree to which it has been implemented in ASEAN members.
The phenomenon of cross-border insolvency occured especiallyduring the regionalism era. During discussions of economic integration, it proved particularly difficult to achieve comity amongst nations because of state sovereignty. In ASEAN, it was the establishment of the ASEAN Economic Community (AEC) that triggered discussion of the risks of cross-border insolvency among member states. The begining of AEC seems to have been the most ambitious facet of the integration project. 5 Aiming to establish a single market of 625 million people would make ASEAN the world's single largest market. It could even surpass other integrated zones, such as the EU and the North American market.
ASEAN member states mostly consist of countries midway between developing and developed. Integrating the various economic systems of the members is considered a major milestone in the regional economic integration agenda. The AEC arguably holds the key for the association's credibility and longevity, as well as its citizens' economic welfare.
The AEC rests on four pillars-a single market and production base, a competitive economic region, equitable economic development, and integration into the global economy. Instead of outlining the 176 priority actions here, the AEC's goal can be simplified as follows: ASEAN member states seek to increase the size of the economic pie by joining forces, to grow the pie continuously by integration into the global economy, and to distribute it in a better way.
However, due to ASEAN's pronounced diversity, including the political systems, socioeconomic development, even the languages and religions, the economic integration project and policy have faced considerable obstacles. These include multijurisdictional proceedings during disputes over the integrated economy, and border less cooperation between ASEAN members over cross-border insolvency. The fact that AEC has still not resolved the cross-border insolvency issue is especially unfortunate, considering its aim of an integrated economy and the high traffic of transnational trade and investment.
As a result of ASEAN cross-border trade, assets are located not only within the state where they're domiciled, but across borders and scattered within other member states. It has become increasingly true as a consequence of ASEAN economic integration. Universal implementation is implied by the universality principle that a bankruptcy decision is key to realizing the justice of the liquidation process of a globally domiciled bankrupt debtor's assets. 6 Execution of the debt's assets that is granted by acourt against a debtor will not be automatically recognized by the state where the debtor's assets are domiciled. That's based on the principle of territorial sovereignty, not the recognition of an administrator appointed by the court in managing and administrating the debtor's rescue proceedings. Only a re-litigation procedure could execute the debtor's assets, but it would most likely create a longer delay, extra costs and further legal uncertainty during the period when state jurisdictions would apply.
Inadequacy of the laws dealing with cross-border insolvency of multinational corporations has created an uncertainty for business activities. As globalization takes hold and ASEAN free-trade though AEC becomes more entrenched in the Southeast Asian economies, more companies are expanding their businesses into neighboring countries. How cross-border insolvency affect their trading partners will be processed and ultimately resolved in different countries. It's become a major business issue. 7 The need for insolvency regulation seems to be inevitable, especially as the region faces the consequences of its Economic Community implementation creating a more unified economic potential and competition among members. The existence of crossborder insolvency regulation within ASEAN will consequently create internationally located assets as the sovereignty region of the ASEAN member states. Assets located in multiple states will lead the commencement of numerous insolvency proceedings and yet more laws will be invoked. There is still no sufficient law regarding cross-border insolvency that addresses commercial and business matters within ASEAN. Members are wary of trader or investor parties and governments. Despite the fact that an integrated economic framework has already been established, it potentially leads to inconsistent administration practices and legal procedures. This would hinder the efficient or fair administration of insolvency, and potentially hamper any prospect of a company's rehabilitation.

II. ASPECTS OF INTERNATIONAL LAW REGARDING CROSS-BORDER IN-SOLVENCY
Relations between legal subjects have resulted in particular legal consequences. International law is a consequence of interstate relations and cooperation. Since there might be multiple jurisdictions involved in the relations between states, international law has been designed to regulate how states should behave and cooperate. Crossborder insolvency becomes an issue since there are multiple jurisdictions and various national insolvency laws once a cross-border insolvency proceeding takes place. Roman Tomasic has explained how a "cross-border insolvency may occur, for instance, where an insolvent debtor has assets in more than one state, or where creditors are kept from the states where the insolvency proceeding are taking place, yet the cross-border insolvency can apply to an individual or corporation". 9 A crossborder insolvency may occur because domestic and foreign elements have formed a partnership, 10 but the foreign element has since become dominant. Since there are now foreign parties involved in a cross-border insolvency, there arise multilateral (or multinational) laws and jurisdictional disputes.
Prior to the 1997 economic crisis in Asia and elsewhere, the risks of cross-border insolvency rose rapidly. Unfortunately, there was no adequate regulation for solving such matters. The complexity of cross-border insolvency also overrode previous strict territorial state proceedings which did not extend to assets located in foreign countries or vice versa. 11 The United Nations Commission on International Trade Law adopted a model relating to cross-border insolvency on 30 May 1997. In May 2000, the European Union (EU) also adopted Insolvency Regulation (EC) 1346/2000 concerning the rules of jurisdiction operating between EU member states. It focused on creating a framework for the commencement of proceedings and for automatic recognition and co-op era ti on between member states in matters of cross-border insolvency. The multilateral approach provides a choice of law that selects a legal system to apply to the transaction and then adjudicate the disputes. This requires a court first to characterize the issue; next, to select the relevant rule(s)from each legal system, pertaining to the conflicting laws. Given the multidimensional aspects of legal problems that arise in an insolvency with foreign elements, an advantage of this approach is that it allows more flexibility in arriving at suitable solutions. 12 The foreign elements of cross-border insolvency differ from the usual domestic insolvency. There are four types of foreign elements in cross-border insolvency: foreign debtors, foreign creditors, estates located in foreign country, and estates owned by foreign companies. 13 The phenomenon of cross-border insolvency is encountered where the dispersal of the debtor's assets and the activities generates an array of interests and claims involving potential application of more than a single system of law. 14 There are two main principles related to cross-border insolvency, territorial and universal. Historically, most legal systems have developed on a territorial basis, and this is equally true with relation to bankruptcy or insolvency laws. However, from an early stage there have also been piecemeal attempts to develop cross-border cooperation based on universal principles. 15 A territorial principlebasically drives from the doctrine of state sovereignity -the notion that the authority of one system, including its insolvency laws and proceedings, should be confined to the territory of the state. 16 As such,each country exercises its own insolvency laws in relation to all of the debtor's property and all creditors located within its jurisdiction. This approach does not recognise any extraterritorial dimension. Meanwhile,the universal principle is achieved when a single estate consisting of all the debtor's assets, wherever located, is administered by a single trustee appointed by the authorities in the adjudicating country. One bankruptcy court marshals all of the debtor's assets within its jurisdiction and settles all creditor claims against them. Such unitary disposition gives international effect to a local bankruptcy judgment. 17 Under the universal principle or approach, allcross-border insolvencies areadministered pursuant to a single global regime and all of the debtor's assets are distributed by a single insolvency office holder regardless of where the assets or claimants are located.
Some expertssuggest a hybrid approach combiningboth principles, resulting in a number of theoriesandpractices, including "modified universalism," whereby individual countries seek to identify the most relevant jurisdiction in which to conduct the proceedings, and all other states cooperate with and facilitate such proceedings (subject to limits of public policy). 18 There is also "co-operative territorialism," which is broadly predicated on the territorial approach, supplemented by multi-lateral conventions. 19 It is generally recognised that the universalist approach remains largely a holistic ideal, and that for the most part countries of the world are divided into those which take a purely territorial approach, and those which apply some form of hybrid.The territorial principle is still the most used, as it appears to protect state sovereignty.
Prior to the establishment of UNCITRAL Model Law on Cross-Border Insolvency (1997) with Guide to Enactment and Interpretation (2013), there were various international conventionsthat pertained tocross-border proceedings. Cross-border proceedings need to be well-adjusted and received by all the state parties to achieve legal certainty. Thus it needs multilateral agreement or convention, which are: Convention Abolishing the Requirement of Legalization for Foreign Public Documents of Apostile Convention (1961), that regulates the legalization of public documents needed for cross-border proceedings; The Hague Convention on the Taking Evidence Abroad in Civil or Commercial Matters (1970), that regulates the evidence (or estate, in insolvency) located in foreign countries to be taken or processed by the court; and The Hague Convention of the Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters (1971) and the Supplementary Protocol of 1 February to the Hague Convention of The Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters, that regulates the recognition and enforcement of foreign judgements of civil and commercial matters. These conventions summarize the needs of cross-border proceedings and latter became the basis for the UNCITRAL Model Law.
The UNCITRAL Model Law of Cross-border Insolvency, et al, is the most recent model law that could be employed to solve cross-border insolvency matters. As a model law, unlike other conventions listed above, it has no binding power over the states who ratified it. The basic concept of the Model Law is to establish the "main proceedings" in relation to any international insolvency. All other proceedings are referred to as the "non-main proceedings." The main proceedings commence where the debtor has its centre of main interest, or "COMI". 20 The non-main proceedings may commence anywhere the debtor has a commercial establishment. The Model Law does not require reciprocity between states, but focuses upon (i) ensuring that states provide assistance to insolvency officials from other countries in relation to main and non-main proceedings, and (ii) eliminate preferences for local creditors over international ones 21 . Its preamble lists the basic purposes of its establishment, which are: cooperation between the courts and other competent authorities of the state and foreign states involved in cases of cross-border insolvency; greater legal certainty for trade and investment; fair and efficient administration of cross-border insolvency that protect the interests of all creditors and other interested parties, including the debtors; protection and maximization of the value of the debtor's assets; and facilitation of the rescue of financially troubled businesses, thereby protecting investment and preserving employment. 22

III. ASPECTS OF INDONESIAN DOMESTIC LAW REGARDINGCROSS-BOR-DER INSOLVENCY
The national regulation of Indonesia which pertains to bankruptcy or insolvency matters is Law No. 37 Year 2004 on Bankruptcy and Suspension of Payment. There is no specific article regarding this law, but there are some articles implying the recognition and enforcement of foreign judgments on cross-border insolvency and also the foreign element of cross-border insolvency in which Indonesia is a party. Both foreign and domestic debtors and creditors' rights have to be protected. Law No. 37 describes the jurisdictional matters, choice of law, recognition and enforcement.
The fact that each party might be domiciled in different countries urges legal certainty in cases of cross-border insolvency. Laws that differ from one another 20 United Nations, UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation (Vienna: United Nations, 2014). Hereinafter Model Law 21 Ibid., Article 13, paragraph 2 22 Ibid., Preamble of UNCITRAL confuse the contracting parties in the courts where they've submitted the case. Nor is it often clear which jurisdiction applies in certain cases. Based on "actor equitor," the court that has the authority is the court where the respondent is domiciled. The supporting principles are presence and effectiveness.
The most likely issues in cases of cross-border insolvency petitions involving Indonesian parties are recognition and enforcement. Indonesia does not recognize foreign court decisions, as it takes a territorial view of arbitration. Under Article 436 of the RV (Reglement of de Rechtsvordering, an Indonesian civil procedural regulation from the colonial era), a foreign court judgment cannot be enforced in Indonesia directly. To enforce such a judgment, a new lawsuit must be filed in Indonesian court. The foreign court judgment may be introduced as evidence in the new proceedings, although in principle the Indonesian court will not be bound by its findings. It must be presented in authentic format, with a certified translation of the judgment into the Indonesian language. Though not directly enforceable, Indonesian courts have recognized declaratory judgments (regarding the ownership of goods, validity or nullity of marriage, etc.) And constitutive judgments (e.g. decisions concerning the appointment of guardians, bankruptcy, etc.) Issued by foreign courts on the basis that these judgments do not need any execution from the Indonesian courts and merely establish rights and duties of persons in certain situations.
The procedure will effectively amount to a retrial.It can take between five months to one year to obtain a district court decision in Indonesia. The losing party may file an appeal in the relevant High Court. It can also take from five to 12 months to obtain a High Court decision. The losing party there may then file an appeal tot he Supreme Court. It can take two to five years for that ruling to be issued. The ruling will indicate whether the foreign court judgment can be enforced.
Article 3  In the event that the debtor does not have a domicile within the territory of the Republic of Indonesia but conducts his profession or business in the territory of the Republic of Indonesia, the competent court to decide is the court having jurisdiction over the region where the domicile of the office from which the debtor conducts his profession or business is located."Unfortunately, the above article is not legally binding because there still remain the principles of presence and effectiveness in private law. Those explain the possibility of submitting the petition outside Indonesia, wherever the debtors and his estates are currently located.
Section 10 of Law No. 37 Year 2004 on Bankruptcy of Suspension of Payment explains the provisions of international law. Articles 212, 213, and 214 imply that the status of foreign elements in cross-border insolvency involving Indonesian party(ies) is not fully recognized and would not be easily enforced.
Article 212 states, "The creditors, who, after the bankruptcy declaration,as their claim on the debt, have taken out a whole or part of the goods owned by the bankrupt debtor that are located beyond Indonesian territory,shall be required to compensate the bankruptcy for what they took out with regard to such priority right."Article 213 (1), states, "The creditors who have transferred their claims of debt against the Bankrupt Debtor, in whole or in part to a third party to enable the third party either entirely or partially, individually or having priority over other parties, so that the payment for those claims on debt can be taken for settlement from the goods of the bankrupt debtor located beyond the Indonesian territory, shall compensate the bankruptcy estate for anything obtained in such manner." Article 213 (2): "Unless it can be proved otherwise, any transfer of claims on debt shall be deemed already performed in accordance with the provision as referred to in paragraph (1), if the Creditors perform the transfer and the Creditors know that the bankruptcy declaration has been filed or will be filed." Article 214 (1), "The obligation of compensation shall also be applicable to anyone transferring this debt or claims, entirely or partially to third parties and in this way the third party shall have the opportunity to set-off his debts or claims with a debt or claims beyond Indonesia, which is not permitted under this regulation." Article 214 (2), "The provisions of Article 213 paragraph (2) shall also apply to Article 214 paragraph (1)." Basically, the state (including Indonesia) will recognize and enforce any foreign court decision only if the decision can be accepted by the international standard, has fair proceedings, and if the foreign court decision does not violated the public order. 23 Hence, the execution of cross-border insolvency petition could not be directly handled by the foreign jurisdiction. Particulary in Indonesia, there must be a re-litigation and re-petition proceeding to adjust with Indonesian Insolvency law.

IV. THE CHALLENGES OF ESTABLISHING CROSS-BORDER INSOLVENCY IN ASEAN
The ASEAN Economic Community framework mayhave been established last year, but its journey towards economic integration has actually been underway over decades. Itwas seen as a way to promote economic, political, social, and cultural cooperation across the region, allowinga free flow of goods, services, labour, investments, and capital across the member states. It wouldmove Southeast Asia towards a globally competitive single market and production base.
The economic cooperation that binds ASEAN has taken root through different channels over time. Theyincludecountries sharing complementary roles in manufacturing, improved ease in moving products across borders, and other mechanisms facilitatingasmoother flow of goods, services and capital, and skilled labour across the region. This contributes towards the narrative on ASEAN being one of the most dynamic regions in the world, and a key contributor to world economic growth.
The integration has also meantnarrowing the economic development gap within the ASEAN members. ASEAN members are midway between developing and developed countries. As a result ofitsmembers' various economic capacities, they have each adjusted theircompetencies to reach the goal of intra-ASEAN economic cooperation.
The ASEAN Economic Community (AEC) was founded inlate 2015 and quickly became a huge stepping stone forachievinga regionalintegrated economy. The alliance's vision for the next nine years, laid out in the AEC Blueprint 2025, includes the following visions: a highly integrated, cohesive economy; a competitive, innovative, and dynamic ASEAN, with enhanced connectivity and sectoral cooperation; a resilient, inclusive, people-centric region.
The road to establishing a single market throughout ASEAN has been rough indeed, 23 Jerry Hoff, Undang-undang Kepailitan di Indonesia [Bankruptcy Law in Indonesia] (Jakarta: Tatanusa, 2000), p. 20. but the efforts have paid off. Companies now approach it as one region. The regional initiative to allow free movement of goods across borders might be progressing slowly, butt he region can only proceed at the behest of national governments. The laws of every ASEAN member are so different that a common vision and region-wide comity is difficult to arrive at. The progress might be slow, but the 2015 ASEAN Investment Report cited a slight advance in achievement from intra-ASEAN investment via Foreign Direct Investment (FDI) inflows, which shows foreign investment progress among the ASEAN members.
The ASEAN Economic Community is touted as a milestone for its member states, and engaged as an eminent establishment. It has been called a stepping stone along a lengthy, on-going, fully integrated process. However, according to a Deloitte survey amongst CEOs in Southeast Asia, instead of 2015, a more realistic date for full implementation of the AEC agenda will be around 2030. 24 The member states are fully aware of the situation, and formulation of the post-2015 agenda is in full swing.
The engagement policy of AEC on its blueprints is attracting additional Foreign Direct Investment (FDI) to the intra-ASEAN investments. In 2015, the economy grew and remained the largest source of FDI flows, rising marginally by $15 million to $22.1 billion in2016. Figure 1 shows how the share of intra-ASEAN FDI investment flowing to the region rose from 17 per cent in 2014 to 18.5 per cent in 2015. Seven ASEAN member states received higher levels of intraregional investment (Malaysia, the Philippines, Thailand, and CLMV countries), suggesting a further increase in regional connectivity. Intra-ASEAN merger and acquisition activities also grew, contributing to an increase in intraregional corporate investment and activities by ASEAN companies.
Intraregional investment is the largest source of FDI for some ASEAN Member States. FDI flows to the primary, manufacturing and services sectors differed markedly. Flow to manufacturing rose significantly, by 61 per cent, from $18 billion in 2014 to $29 billion in 2015. However, flow to the services industries declined by 21 per cent, to $79 billion -dragged down by the FDI in finance. Investments in the primary industries were flat, at par with their 2014 level.
ASEAN remains a competitive and attractive destination for FDI. Investor perceptions of the region have been largely and increasingly positive. Its longpursued, market-driven economic integration among its fellow member states, through trade and FDI, resulted in the success of the advanced members of ASEAN joining regional supply chains embedded into global supply chains.The less advanced members arealso catching up.The FDI shows how ASEAN members are slowly developing their economies and adjusting the recent situation. That requires a strong regional economy. It is also represents how ASEAN could compete in the global market economy.
Theoretically,cross-border insolvency resolution should also be an objective if ASEAN wants to establish an integrated economy. It seems a little hazardous, seeing as how ASEAN integration is still in full swing. The differences between the legal systems requires that establishing such a cross-border regulation includes a strong will to harmonize the domestic law and realization of the international comity within the ASEAN members. It needs strong mutual recognition and coordinated enforcement.
Consequently, cross-border insolvency regulation has not been a major ASEAN concern. Previous cross-border insolvency laws have been enacted through litigation and repeated proceedings, covering each domestic law affected. The legal uncertainty and the cost of re-litigation reduces the value of bankruptcy estates. Obviously, the lack of specific regulations regarding cross-border insolvency would create future obstacles for the growing ASEAN economy.
Though the situation is not without complexities and uncertainties, still, the AEC might eventually unleash significant, unforeseen potential for the ASEAN region. ASEAN has made steady progress on its internal economic integration, but they're is still a long way to a fully integrated economic region. The alliance needs to continue strengthening its internal integration,maintain its centrality, and further deepen AEC and ASEAN policy coordination and harmonization of their laws.

V. CONCLUSION
The ASEAN Economic Community has steadily advanced toward its goals of creating a deeply integrated and highly cohesive economy that will support sustained high economic growth and resilience in the face of global economic shocks and volatilities. The fact that the number of cross-border trades has increase significantly shows that ASEAN is already making great stridel.
Its robust growth and resilience is demonstrates not just by cross-border trade, but by greater investment and cooperation resulting in more companies with more assets, business, and presence in multiple jurisdictions. However, it confronts a myriad of complex issues in coordinating rescue proposals or winding up businesses across jurisdictions. Solving the cross-border insolvency petition becomes complex when bankruptcy estates ere scattered across nation, within the ASEAN.
Previous cases were solved only by serial-litigation and repetitive mechanisms that create a legal uncertainties and led to decreasing value of bankruptcy estates. In this regard, the multiple jurisdictions and variable law from one member state to another is the main reason for the legal uncertainty and the costly mechanisms. The absence of in solvency regulations within the individual states becomes the reason why the matter of ASEAN cross-border insolvency still lack well-made proper regulation The international and(domestic laws of Indonesia actually contain the potential for harmonizing such a regulation. In fact, cross-border insolvency is already regulated by the United Nations'UNCITRAL Model Law on Cross-Border Insolvency. The model law is designed to solve cross-border insolvency situations. Though each state has its own national laws and proceedings, none have schemes to surpass national borders and simplify procedures. Hence,it would be necessary to use the UNCITRAL model to guide the establishment of such a regulation in ASEAN,An in-depth harmonization of cross-border insolvency regulation should be a priority for the ASEAN Community to achieve a full-integrated regional economy