Legal Challenges of Cross-Border Insolvencies in Sub-Saharan Africa with Reference to Tanzania and Kenya: A Framework for Legislation and Policies

Benhajj , Shaaban Masoud (2012) Legal Challenges of Cross-Border Insolvencies in Sub-Saharan Africa with Reference to Tanzania and Kenya: A Framework for Legislation and Policies. ["eprint_fieldopt_thesis_type_phd" not defined] thesis, The Open University of Tanzania.

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Abstract

Although a substantial body of literature has developed in recent years in the area of cross-border insolvency, this scholarship has been dominated by scholars from the United States and Europe, so that a perspective from most of Sub-Saharan African (SSA) countries is lacking. This study addresses this perspective. It makes an in-depth examination and discussion of the challenges that SSA countries face in reform and application of cross-border insolvency law given the ever-growing multinational trade and investment. The study focuses on the risk of failure of SSA legislative processes to properly address the potential challenges of cross-border insolvencies in a manner that is sensitive to the local contexts and which provides a balance with international insolvency benchmarks. It examines cross-border insolvency theories; the global drivers for convergence of insolvency law through global insolvency norms; and the implications for cross-border insolvency regulations arising from cross-border trade and investment arrangements, such as the bilateral investment treaties, before considering the state and future of the legislative frameworks of SSA countries. It then brings out the ‘pressures’ exerted on and issues that emerge in the consideration and quest for crafting a workable and appropriate cross-border insolvency framework for a SSA country. Notably, the current insights and the pressures from the global convergence may result in unsuitable legislative reforms as such insights and the global insolvency norms are not necessarily and directly relevant to SSA situations. The study offers the perspective that has hitherto been lacking in the current scholarship and provides a theoretical insight and understanding on how the crafting of a workable and appropriate legislative framework may be undertaken, taking account of local policies and providing a balance with the existing international insolvency benchmarks. The study underscores the significance and challenge of prioritising the local contexts in developing a functional cross-border insolvency framework.

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