Cross Border Winding Up of Company and Creditors Protection in Tanzania

摘要

With development of technologies today's world is like a global village with corporate dealings across national borders, thus companies incorporated in one country can conduct a business all over the world. The main problem arises in how to protect creditor's rights on the winding up of a foreign company especially when there are no sufficient assets in local jurisdiction or properties /assets resident in foreign jurisdiction, since the development of a company greatly depends on funds acquired from creditors. The literature presents on how laws (especially corporate laws) serve as a means to deal with cross border liquidation problems. The work consists of five chapters in which the effect of unprotection to the said creditors is studied and solutions for the same are given. Some local legislations are designed to protect creditors but protection on cross-border liquidation of companies are not sufficient. A uniform code is needed to offer full protection on the same throughout the jurisdiction. Local judicial protection proven failure in protecting creditor's rights on cross-border liquidation especially when there are no sufficient assets within the local jurisdiction or assets resident outside local jurisdiction. The uniform code can be achieved by signing a treaty or an agreement between jurisdictions. The study proved that, where there is a treaty or an agreement on reciprocal treatment on enforcement of creditors' claims, between different jurisdictions, render the issue of recognition of foreign judgment and enforcement of order less problems faced cumbersome. Therefore a uniform code is the only way in which the in realizing claims across jurisdictions of local courts can be solved. The dissertation examines the laws relating to cross-border winding-up of companies and the protection of creditors in Tanzania ,as well as making comparative study in the forth chapter on the cross border liquidation between Tanzania and China in a nutshell. In the first chapter it begins by analyzing the background of economic system and company law of Tanzania in order to get to the root of problem. The work explores the current situation of foreign companies in Tanzania taking into consideration the foreign investment policy, because legislative changes as well as policies reflect to a great extent the trend of investment or companies in Tanzania. The paper also discuses on policies, International instruments and legislation and how they operate with respect to investors in Tanzania. In the second chapter, it examines the winding up of foreign Companies in Tanzania analyzes winding up test and recognition of cross border liquidation, the issue of conflict of law and the extent to which Tanzania laws take into consideration the recognition of cross border winding up of companies; their role in safeguarding creditors as well as companies conducting commercial transaction across the boundaries, that is how the issue of cross border liquidation of companies are handled at the domestic as well as international level .It ends by addressing the issue of choice of law in a company liquidation involving more than one jurisdiction and the extent to which Tanzania laws intervene on the same. Chapter three pinpoints the position of creditors when a foreign company is wound up.It examines how creditors are protected under Tanzanian law in the event that a foreign company is wounded up(especially local creditors).It analyzes the circumstances where there are no suffcient assets to satisfy creditors on liquidation of a foreign company and how shareholders and management bear liability on liquidation of a foreign company as well as the extent to which creditors are judicially protected in cross border liquidation in Tanzania. In chapter four the work further takes a comparative look at the position of foreign companies under Tanzania laws and that of People Republic of China; it traces position of foreign companies, their liquidation and protection of creditor in China compared with that of Tanzania. It moves further on analyzing procedure jurisdiction choice of law and enforcement of foreign judgment aspect between the two jurisdictions Tanzania and China. Finally in chapter five the paper gives recommendations for the improvement and further amendment of the Tanzanian Company Act (cap 212) as well as that of Peoples Republic of China in order to achieve adequate provisions that deals with the protection of creditors on cross-border winding-up of Companies.

目录

英文文摘

论文说明：ABREVIATIONS、TABLE OF CASES、List of Statutes

声明

PREFACE

Background to the problem

Statement of the problem

Hypothesis

Literature Review

Objective of the study

Significance of the study

Research Methodology

Chapter 1 Brief History of Company Law and Investment Policy in Tanzania

1.1 Historical Backgrounds of the Economic System and Company Law in Tanzania

1.1.1 Current Situation of Foreign Company and Introduction to Foreign Investment Policies in Tanzania

1.1.2 Foreign Investment Policies in Tanzania

1.2 Investment law in Tanzania and major international treaties

1.3 Investments Forms in Tanzania

1.3.1 International Investments

1.3.2 Local investments(LI)

1.4 Position of foreign companies in Tanzania

Chapter 2 Winding—up and Recognition of Foreign Company in Tlanzania

2.1 Liquidation／Winding up of a foreign company in Tanzania

2.2 Winding-up test and recognition of cross border liquidation

2.2.1 Recognition of cross border insolvency under common law

2.2.2 Tanzania recognition of cross border liquidation

2.3 Conflict of laws

2.4 Intervention of statute on cross border liquidation

Chapter 3 Protection of Creditors and Management and Shareholder Liability on Cross-Border Liquidation

3.1 Protection of Creditors on Winding up of Foreign Company in Tanzania

3.2 Position of creditors in case of in sufficient assets in Tanzania

3.3 Shareholder and management liability

3.4 Judicial protection of creditors on cross border liquidation

Chapter 4 China and Tanzania Comparative Study in Cross-border Liquidation

4.1 Cross Border Liquidation in People Republic of China with Some Comparative Studies with Tanzania

4.2 Liquidation of foreign companies in the People’s Republic of China compared with Tanzania

4.3Liquidation of foreign companies in People Republic of China compared with Tanzania

4.3.1Procedure,jurisdiction,choice of law and enforcement of the judgment

4.4 Protection of creditors on cross border liquidation in People’s Republic of China compared with the case in Tanzania

Chapter 5 Conclusion and Recommendations

5.1 Conclusion

5.2 Recommendations

5.2.1 Statutory action provisions and creditors protection

5.2.2 Enforcement of remedies

5.3 Final observations of the Paper

References

Acknowledgment