미국 도산관할의 Forum-Shopping에 관한 고찰

Forum-shopping among courts can be modeled as a type of competition among competing legal suppliers, with litigants serving as demanders and judges as suppliers. Market competition can produce good or bad results, depending on the institutional structure surrounding it and the incentives of the parties partaking in it. Whether the outcomes generated by particular market competition will be socially beneficial or harmful depends on the institutional constraints imposed on the actors, the incentives to satisfy consumer preferences, and the accuracy of market signals that channel supplier responses. The forum-shopping debate has focused repeatedly on the third analogy-the Delawarization of corporate law. By looking at a broader cross-section of forum-shopping models, it will become possible to understand the dynamics of forum-shopping more generally for purposes of application to bankruptcy forum -shopping. Moreover, for reasons that will become clear, the corporate law analogy is not necessarily the most apt analogy to the bankruptcy forum-shopping model. There is little doubt that forum-shopping occurs in bankruptcy. The rapid rise of the Southern District of New York in the 1980s, followed by its equally rapid plunge and the rise of Delaware, makes it clear that bankruptcy filings are not randomly distributed; instead, there is a conscious choice among different courts. The primary question to be asked is whether the outcomes of bankruptcy forum-shopping are generally bad (as with modern tort law), generally good (as with interjurisdictional court competition during the Middle Ages), or ambiguous (such as the dominance of Delaware in modern corporate law).