Most recent papers:

• The European Insolvency Regulation and the UNCITRAL Model Law on Cross‐Border Insolvency.
  Reinhard Bork.
  International Insolvency Review. September 12, 2017
  This article compares the Recast European Insolvency Regulation of 2015 with the UNCITRAL Model Law on Cross‐Border Insolvency of 1997, focussed on their scope of application, international jurisdiction and the coordination of main and secondary proceedings. The scopes of both catalogues of norms and their rules on coordination of main and secondary insolvency proceedings reflect one another. However, the Recast EIR makes a significantly greater contribution to the unification of law and is also more fully differentiated and more precise, even if this comes at a price, namely, limited flexibility. The UNCITRAL Model Law made an important contribution to the harmonisation of international insolvency law but requires now modernisation. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  September 12, 2017   doi: 10.1002/iir.1282   open full text
• From ‘Prisoner's Dilemma’ to Reluctance to Use Judicial Discretion: The Enemies of Cooperation in European Cross‐Border Cases.
  Renato Mangano.
  International Insolvency Review. September 08, 2017
  This article will focus on Articles 41–44 of the Recast European Insolvency Regulation (Regulation 2015/848) and the dynamic of cooperation and communication between courts and insolvency practitioners. Two main ideas will be maintained. The first is that cooperation requires a legal framework which is certain—otherwise, prescriptions imposing duties of cooperation and communication might produce ‘prisoner's dilemmas’ and, paradoxically, unwillingness to cooperate. The second idea is that prescriptions imposing duties of cooperation and communication have an intrinsic open texture—this characteristic ontologically requires courts and insolvency practitioners to make choices between different rulings and activities. These findings imply that while interventions, both at European level and at national level, aiming at making the legal framework more certain are always welcome, interventions aiming at better specifying contents and extension of duties of cooperation and communication could be to a certain extent useless and even counterproductive. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  September 08, 2017   doi: 10.1002/iir.1285   open full text
• ‘Brexit’ and International Insolvency Beyond the Realm of Mutual Trust.
  Laura Carballo Piñeiro.
  International Insolvency Review. September 08, 2017
  The outcome of the referendum held in the UK in June 2016 is of far‐reaching and unpredictable consequences. This article focuses on the particular field of international insolvency with a view to identifying some of them, all arising out of the fact that the UK will be leaving the EU area of justice and the strong cooperation based on mutual trust between member states. This will make UK–EU insolvency cases clearly less efficient and effective. The consequences of Brexit could be mitigated by the already existing coordination among the international instruments dealing with these matters, in particular the European Insolvency Regulation and the UNCITRAL Model Law on Cross‐Border Insolvency. However, not all EU member states have in place rules dealing with these issues as regards to third states. In order to lessen the impact of Brexit in this sensitive area of law, the implementation of the Model Law in order to deal with extra‐EU cross‐border insolvency could be of avail. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd

  September 08, 2017   doi: 10.1002/iir.1283   open full text
• Reconsidering Procedural Consolidation for Multinational Corporate Groups in the Context of the Recast European Insolvency Regulation.
  Daoning Zhang.
  International Insolvency Review. August 25, 2017
  Procedural consolidation, as a solution to the rescue of insolvent multinational corporate groups (‘MCGs’), is said to be able to preserve group value for creditors. This article explores the desirability of procedural consolidation in the EU in the light of theories of corporate rescue law, cross‐border insolvency law, multinational enterprises and relevant EU cases with reference to the European Insolvency Regulation. It argues that, based on current cross‐border insolvency rules in the EU, there is an inherent difficulty for procedural consolidation in balancing the goal of preservation of group value and the goal of certainty. The article also considers the new ‘group procedural coordination proceedings’ offered by the Recast European Insolvency Regulation and argues that it may help to supplement the gap left by the procedural consolidation in the EU. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  August 25, 2017   doi: 10.1002/iir.1286   open full text
• Grounds for Refusal of Recognition of (Quasi‐) Annex Judgements in the Recast European Insolvency Regulation.
  Zoltan Fabok.
  International Insolvency Review. August 25, 2017
  Insolvency‐related (annex) actions and judgements fall within the scope of the Recast European Insolvency Regulation (‘Recast EIR’). That instrument both determines international jurisdiction regarding annex actions and sets up a simplified recognition system for annex judgements. However, tension between the Recast EIR's provisions on jurisdiction and recognition arises when a court of a state different from the state of insolvency erroneously assumes jurisdiction for annex actions. Such ‘quasi‐annex’ judgements rendered by foreign courts erroneously assuming jurisdiction threaten the integrity of the insolvency proceedings. Besides, the quasi‐annex judgements may violate the effectiveness and efficiency of the insolvency proceedings as well as the principle of legal certainty. In this article, it is argued that even the current legal framework may offer some ways to avoid the recognition of such quasi‐annex judgements. First, the scope of the public policy exception may be extended in order to protect the integrity of the insolvency proceedings from the quasi‐annex judgements rendered by foreign courts erroneously assuming jurisdiction. Second, it may be argued that quasi‐annex judgements do not equal real annex judgements and therefore do not enjoy the automatic recognition system provided by the Recast EIR. At the same time, their close connection to the insolvency proceedings – disregarded by the forum erroneously assuming jurisdiction – may exclude quasi‐annex judgements from the scope of the Brussels Ibis Regulation, as well. As a consequence, those quasi‐annex judgements may fall within the gap between the two regulations, meaning that no European instrument instructs the courts of the member state addressed to recognise quasi‐annex judgements. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  August 25, 2017   doi: 10.1002/iir.1284   open full text
• The Impact of Austerity in the Framework of Corporate Rescue and the Rights of Workers in the EU: A Road to Recovery?
  Jennifer L.L. Gant, Alexandra Kastrinou.
  International Insolvency Review. June 20, 2017
  The financial crisis and the sovereign debt crisis have been attributed to a number of causes. Whether these are economic, social, cultural or legal, they are all by and large also political. The aim of this article is not to delve into the myriad of heated political arguments that continue to dominate the scene but to assess the impact of the financial crisis on the employment protection rights and the corporate rescue regimes in Greece, Portugal, France and the UK. In light of the crisis, the rights of the workforce have been severely compromised to afford financially troubled companies a greater opportunity to recover. In order to minimise the catastrophic impact of financial turmoil on their economy and society, all four jurisdictions introduced reforms to their labour codes and corporate rescue mechanisms, often in the name of austerity. This article will offer a snapshot of the changes and their effects and an assessment whether or not the reforms of pre‐insolvency regimes have operated as an effective embankment for the protection of social and economic welfare. The purpose of this piece is to shed a light on the changes that have occurred and that have affected employment rights in the domestic legal systems of individual member states, as influenced to some extent by the EU in its expectations of improvements to increase labour market flexibility, and whether corporate rescue mechanisms in individual member states are able to provide some counterbalance to the erosion of employment rights generally. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  June 20, 2017   doi: 10.1002/iir.1276   open full text
• An Invitation to Encourage Due Consideration for the Survivability of Rescued Businesses in the Business Rescue System of England and Wales.
  Bolanle Adebola.
  International Insolvency Review. June 20, 2017
  Rescue seeks to preserve the going concern in a financially distressed but potentially viable business. It aims, on one hand, to maximise the value in distressed businesses and, on the other, to give potentially viable but distressed businesses the opportunity of a second chance. In England and Wales, the main rescue process is structured to strive for the former but pays relatively little attention to the latter. The mechanisms that have been introduced to maximise the prospects of the achieving a going concern sale have been associated with the subsequent failure of the rescued business. It appears, therefore, that there is a discord between value maximisation and the survivability of rescued businesses. In 2015, the Graham Review sought to alleviate this discord by proposing the voluntary independent viability report and viability statement. While this article agrees with the reforms to the extent that they encourage due consideration for the future survival of rescued businesses, it argues that the requirements ought to be mandatory and that the buyer should be required to demonstrate that the amount of leverage carried forward and the time span for repayment are calculated with due consideration for the earning capacity of the rescued business and its own operational needs. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd

  June 20, 2017   doi: 10.1002/iir.1274   open full text
• The Use of Noncourt‐Based Corporate Rescue: Does the Australian Voluntary Administration Procedure Provide a Model for China?
  Jenny Fu, Roman Tomasic.
  International Insolvency Review. June 15, 2017
  In the recent international history of insolvency law reform, the reform of corporate rescue and restructuring has been an ongoing project. In China, the enactment of the Enterprise Bankruptcy Law 2006 saw the introduction of a bankruptcy reorganisation procedure that incorporates the debtor‐in‐possession model found in Chapter 11 of the US Bankruptcy Code. However, the Chinese corporate rescue procedure has been significantly underused due in part to various drawbacks associated with this court‐based and highly politicalised process. This paper explores the possibility of reforming China's current corporate rescue regime by drawing upon the Australian voluntary administration procedure. Found in Part 5.3A of the Corporations Act 2001 (Cth), this procedure was designed to provide a relatively swift, inexpensive and flexible corporate rescue mechanism for companies in financial distress. It comprises a noncourt based mechanism under the control of one or more professionally qualified private administrators. It is interesting to note that the UK also moved away from exclusive reliance upon court‐based administration procedures following the passage of the Enterprise Act 2002. This moved the UK closer to the Australian practitioner‐dominated approach to corporate rescue. This paper argues that the addition of a voluntary administration‐style procedure to China's current corporate rescue regime may be needed as China develops its market economy based on the rule of law. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd

  June 15, 2017   doi: 10.1002/iir.1275   open full text
• Corporate Restructuring and Corporate Dissolution of Companies in Financial Distress: Ensuring Creditor Protection. A Comparison of the US, UK and Dutch Models.
  Samantha Renssen.
  International Insolvency Review. May 30, 2017
  Where a company is in financial distress, there are two options: rescue of the (viable) company by restructuring or liquidation of the (unviable) company by dissolution. In practice, the most important restructuring procedure is the US Chapter 11. Many European jurisdictions have used Chapter 11 as a source of inspiration for the enactment of their restructuring proceedings. However, in Europe, national restructuring rules vary greatly in respect of the range of procedures available to companies in financial distress aiming at restructuring. Some European jurisdictions do not provide for formal restructuring procedures at all. Unviable companies in financial distress are too broke to restructure. In most European jurisdictions, unviable companies can be dissolved very quickly and cheaply. However, these procedures also differ from each other. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  May 30, 2017   doi: 10.1002/iir.1277   open full text
• Appointing and Remunerating Insolvency Practitioners in Japan: The Roles of Japanese Courts.
  Stacey Steele.
  International Insolvency Review. March 27, 2017
  Japanese courts play an important role in appointing and remunerating insolvency practitioners. This article examines the roles of courts on the basis of academic and practitioner literature, judicial decisions and interviews with practitioners and former and current judicial officers. First, the article focuses on the methods used to appoint practitioners and the evolution of the system at the Tokyo District Court, Japan's busiest insolvency jurisdiction. Second, the article examines the courts' roles in reviewing and setting practitioners' remuneration through another case study from the Tokyo District Court. Practices trialled and developed in Tokyo are often adapted for local purposes around Japan. The article argues that the courts' involvement has helped to keep the cost of resolving corporate insolvency in Japan down. The review and setting of remuneration deserves particular attention with the increasing prevalence of pre‐packaged and informal restructuring that prima facie appears to allow for greater freedom to set remuneration as between the practitioner and debtor‐client. The article uses a case study to demonstrate that pre‐packaged restructuring is still influenced by the court, however, arguing that the relationship between the court and practitioners remains important. Finally, the article suggests that changes in Japanese insolvency practice and external factors may require the courts and the profession to revisit approaches to appointing and remunerating practitioners. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  March 27, 2017   doi: 10.1002/iir.1270   open full text
• The Inherent Power of Common Law Courts to Provide Assistance in Cross‐Border Insolvencies: From Comity to Complexity.
  Andrew Godwin, Timothy Howse, Ian Ramsay.
  International Insolvency Review. March 23, 2017
  The weighty and difficult issues associated with cross‐border insolvency have generated considerable debate over the last two decades. Legislative reform has typically proven slow and fragmented. This article analyses the inherent power of common law courts to grant assistance in cross‐border insolvency proceedings and the basis on which the inherent power is exercised. In doing so, it seeks to explore how the inherent power may continue to be of utility to common law courts. In particular, it considers the position in jurisdictions that are yet to adopt the United Nations Commission on International Trade Law Model Law on Cross‐Border Insolvency or enact a substantial statutory regime for recognising and cooperating with foreign courts or representatives in insolvency proceedings. The article considers the benefits and disadvantages of continuing to recognise – and extend – the inherent power. It suggests that although there are fundamental differences concerning the exercise of the inherent power, it may be possible to agree on a number of principles that inform the application of the inherent power and its future development. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  March 23, 2017   doi: 10.1002/iir.1267   open full text
• The Environmental Liabilities of a Bankruptcy Estate.
  Tuula Linna.
  International Insolvency Review. March 17, 2017
  The conflict between the bankruptcy creditors and the environmental responsibilities of a bankruptcy estate is discussed globally. The creditors' receivables are usually included in the protection of property rights regulated by Constitution. On the other hand, one can ask whether the bankruptcy estate is breaking the law as an operator by refusing to abolish the harmful environmental pollution. The bankruptcy estate is deemed to be an operator when it has the legal and factual possibility of taking the necessary environmental actions. Accordingly, the costs of the environmental measures taken by authorities instead of the bankruptcy estate must be paid with a super priority from the assets of the bankruptcy estate. Instead, the question concerning the priority status of private environmental damages is a political matter. The argumentation presented in the article may contribute new legislation concerning the environmental liabilities of bankruptcy estates. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  March 17, 2017   doi: 10.1002/iir.1268   open full text
• Asset Sales and Secured Creditor Control in Restructuring: A Comparison of the UK, US and Canadian Models.
  Alfonso Nocilla.
  International Insolvency Review. March 17, 2017
  The primary insolvency restructuring mechanism in the UK is administration under the Insolvency Act 1986, as amended by the Enterprise Act 2002. In an administration, an insolvency professional known as an administrator, who is accountable to the insolvent company's creditors as a whole, is appointed to oversee the restructuring. The administration process was designed to rehabilitate distressed but viable companies and businesses and to maximize creditors' recoveries. Increasingly, however, insolvent companies are using this process to sell substantially all of their assets through pre‐packaged administrations or ‘pre‐packs’. In a pre‐pack, the insolvent company and its senior creditors negotiate the terms of the sale prior to initiating administration proceedings and appointing an administrator. The administrator then implements the deal, often with little or no input from junior creditors or other stakeholders. Both the US Bankruptcy Code and the Companies' Creditors Arrangement Act in Canada permit insolvent companies to sell substantially all of their assets under the auspices of the restructuring legislation. This article compares pre‐packs with these US and Canadian processes, arguing that they are all functionally equivalent in that they facilitate quick realizations for secured creditors by bypassing traditional restructuring processes. This analysis suggests that pre‐packs may give too much control over the restructuring process to secured creditors, encouraging rent‐seeking and other value‐destructive behaviours that undermine the fundamental goals of insolvency law. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.

  March 17, 2017   doi: 10.1002/iir.1269   open full text
• Modelling as a Tool for Cross‐border Analysis of the Position of Insolvency Office Holders.
  Bernard Santen, Jan Adriaanse, Iris Wuisman.
  International Insolvency Review. October 20, 2016
  This paper presents a framework and a model applied to make a cross‐border analysis of the position of Insolvency Office Holders. Both the framework and the model were developed in the course of an assignment to design Principles and Best Practices for Insolvency Office Holders for INSOL Europe. The framework is developed by induction from a variety of sources of rules and regulations regarding Insolvency Office Holders, while the model subsequently has been derived by deduction from the framework. Finally, the paper shows how this method assisted in determining the issues to be covered by Principles and Best Practices. The authors argue that commencing international legal comparison with abstract reasoning and modelling may lessen the effect of researcher's academic or professional blind spots and cultural bias and has the potential to enhance the value of cross‐border analysis in terms of coherence, consistency and completeness. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd

  October 20, 2016   doi: 10.1002/iir.1259   open full text
• The Crisis of Companies from an Italian Perspective: Reorganization and Fresh Money.
  Francesco Accettella.
  International Insolvency Review. October 17, 2016
  Today, the role of fresh money in the reorganization of companies is a central matter in the Italian crisis law. The analysis comes from the recent reforms of the Italian Bankruptcy Law, aimed at revitalizing the pre‐insolvency procedures for overcoming the crisis of companies. These reforms draw inspiration from Chapter 11 of the U.S. Bankruptcy Code. In particular, three new rules have been introduced in the Italian Bankruptcy Law in order to facilitate the obtaining of credit by companies in crisis. These rules recognize priority in reimbursement for claims related to financing. Their target is to incentivize those (not only banks) who want to grant new finance to enterprises in crisis. The target is so important for the legislator that the rules permit the discrimination of companies' creditors on the basis of a judicial valuation of the conditions required for priority by the law in specific cases. The traditional and important principle of equal treatment of unsecured creditors is even more neglected. But the specific meaning of the rules and their inclusion in a sort of company crisis law in time of crisis induce to confine the forms of credit to which the rules refer to and to limit the space for extensive interpretations or applications by analogy. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.

  October 17, 2016   doi: 10.1002/iir.1260   open full text
• Are Bangladesh, India and Pakistan Ready to Adopt the UNCITRAL Model Law on Cross‐Border Insolvency?
  Morshed Mannan.
  International Insolvency Review. October 17, 2016
  The development of business laws in key markets has not kept pace with the exponential growth of foreign investment they have experienced. Countries such as Brazil, Russia and China either do not consider the issue of cross‐border insolvency in their legislation or they explicitly provide for a ‘territorialist’ approach to cross‐border insolvency proceedings, whereby each country grabs local assets for the benefit of local creditors, with little consideration of foreign proceedings. This has led to uncoordinated, expensive attempts at cross‐border reorganisation. The UNCITRAL Model Law on Cross‐Border Insolvency (1997) was adopted with the objective of modernising international insolvency regimes and enhancing cross‐border cooperation. In its 19 years of existence, it has been adopted by 41 countries in a total of 43 jurisdictions but by none of the BRIC states or the ‘Next‐11’ nations of Bangladesh and Pakistan. While it has entered into policy‐level discussion in China, India and Russia, it would seem that there is still scepticism regarding the efficacy and suitability of the Model Law for adoption into their national systems. This paper seeks to establish whether the Model Law can adequately plug, what Steven Kargman calls, ‘the glaring gap in the international insolvency architecture’, looking particularly at the context of the South Asian states of India, Bangladesh and Pakistan. It will question whether its adoption will improve the ability of these jurisdictions to handle the challenges of cross‐border insolvencies, especially in light of their existing legal landscape, their market policy objectives and the existing alternatives available to the Model Law. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.

  October 17, 2016   doi: 10.1002/iir.1262   open full text
• What is in a Name? Group Coordination or Consolidation Plan—What is Allowed Under the EIR Recast?
  Michele Reumers.
  International Insolvency Review. October 17, 2016
  The European Insolvency Regulation Recast allows for group coordination proceedings if insolvency proceedings have been opened against different companies belonging to a single group. Group coordination proceedings imply the drafting of a group coordination plan in order to define an integrated solution to the group's problems. This plan shall not include recommendations as to any consolidation of proceedings or insolvency estates. Against the backdrop of the evolving notion of ‘procedural consolidation’ and the fact the insolvency practitioners and courts concerned have to cooperate and communicate with each other, this prohibition is misplaced and should be interpreted to mean only that main or secondary proceedings opened in a member state cannot be transferred to another jurisdiction. The effective administration of insolvency proceedings of related group companies often demands an integrated solution to the group's problems, which will inevitably lead to some form of consolidation. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.

  October 17, 2016   doi: 10.1002/iir.1263   open full text
• The UNCITRAL Model Law on Cross‐border Insolvency and the Rule of Law.
  Felicity Deane, Rosalind Mason.
  International Insolvency Review. June 16, 2016
  The rule of law is a concept that was often considered in the context of national legal systems. However, it is now commonly being promoted as significant in the transnational context. This paper addresses its importance within the transnational economic and commercial context, in particular in response to cross‐border insolvencies. It examines how the UNCITRAL Model Law on Cross‐border Insolvency and its Guide to Enactment and Interpretation promote key tenets of the rule of law in transnational disputes arising out of businesses in financial distress. In particular, some examples are provided of cases from the Asia‐Pacific region in which the Model Law has been applied to demonstrate how the rule of law may be promoted in an insolvency context. Finally, the paper concludes that the adoption of the UNCITRAL Model Law on Cross‐border Insolvency promotes transparency, accountability and predictability, which in turn support stability in financial systems and credit relationships and thus trade within a global market. This is a direct result of adherence to elements of the rule of law principle. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd

  June 16, 2016   doi: 10.1002/iir.1252   open full text
• ‘Pre‐Pack Administration Sale: a Case of Sub Rosa Debt Restructuring’.
  Anthony Wijaya.
  International Insolvency Review. March 15, 2016
  Under the UK insolvency regime, debt restructuring is ordinarily achievable via a voluntary arrangement, a scheme of arrangement (“scheme”) or a combination of a scheme with administration. However, recently, there has been a growing development of companies using pre‐pack administration sale (“pre‐pack sale”) to effect a debt restructuring under the moniker of a sale of the assets of the company. This article argues that this development poses a genuine danger for the creditors and in particular the junior creditors because such transactions side‐step the protections afforded to the junior creditors in a debt restructuring, particularly a scheme. This article posits that such pre‐pack sales are essentially a sub rosa debt restructuring. Against this backdrop, this article proposes for the use of an ex ante judicial regulatory strategy through the application of the Re Tea Corporation principle to better protect the interest of the junior creditors. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd

  March 15, 2016   doi: 10.1002/iir.1248   open full text
• Comparative Analysis of the Informal Pre‐Insolvency Procedures of the UK and France.
  Alexandra Kastrinou.
  International Insolvency Review. January 29, 2016
  The aim of this paper is to provide a brief overview of the informal pre‐insolvency proceedings available in the UK and France. In addition, the aim is to provide a comparative analysis of the approach taken towards corporate rescue at this early stage by the ‘key players’ in insolvency. In particular, emphasis will be placed on the role of insolvency practitioners and creditors as well as the involvement of the courts in pre‐insolvency restructurings. Finally, the paper considers the effectiveness of the pre‐insolvency mechanisms available in the two jurisdictions and assesses whether or not these promote and encourage a corporate rescue culture. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd

  January 29, 2016   doi: 10.1002/iir.1247   open full text
• Is the Unequal Treatment of Debtors in Natural Person Insolvency Law Justifiable?: A South African Exposition.
  Hermie Coetzee.
  International Insolvency Review. January 18, 2016
  The South African natural person insolvency system has remained largely creditor‐orientated and excludes many honest but unfortunate debtors from its ambit. This is despite the worldwide trend to accommodate all such debtors. Although the system does provide for three different statutory natural person debt relief procedures, the cumulative effect of these measures' entry requirements results in differentiation on financial grounds. This is as all statutory measures require the debtor to have some form of disposable assets or income available – thereby drawing a distinction between those debtors with and those without assets and or income (the so‐called no income no asset debtors). The main aim of this article is to measure the South African natural person insolvency system against the right to equality in terms of both the South African Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act. The article may benefit legislatures and policymakers in constitutional jurisdictions that subscribe to the equality principle and that directly or indirectly exclude some debtors from debt relief while providing others therewith. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.

  January 18, 2016   doi: 10.1002/iir.1244   open full text
• Studies in Convergence? Post‐Crisis Effects on Corporate Rescue and the Influence of Social Policy: The EU and the USA.
  Jennifer L. L. Gant.
  International Insolvency Review. December 23, 2015
  The financial crisis and the sovereign debt crisis that it precipitated in a number of peripheral EU Member States heralded massive changes in insolvency, corporate rescue and employment protection policies. The US and the EU both suffered greatly in the wake of the crisis, but their recoveries have occurred along very different tracks. The US has managed to regain much of its position in terms of relative growth and the UK has outpaced the recoveries of those European countries that are members of the European Monetary Union. The purpose of this treatise is to explore the context of the 2007–2008 financial crisis in the US and in the EU and its impact on legal reform in corporate rescue and restructuring as well as those aspects of social policy implicated within insolvency systems (notably collective redundancy and transfers of undertakings). It will also consider whether or not the corporate rescue and employee protection systems can be seen to be converging, and whether, in view of the different socio‐economic, political and cultural aspects of the US and the EU, such convergence might be beneficial. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd.

  December 23, 2015   doi: 10.1002/iir.1246   open full text
• Various Aspects to Consider with Regard to Special Insolvency Rules for Small and Medium‐Sized Enterprises in South Africa.
  André Boraine, Jani Wyk.
  International Insolvency Review. December 23, 2015
  There is no abstract available for this paper.

  December 23, 2015   doi: 10.1002/iir.1243   open full text
• The Costs and Benefits of Regulating the Market for Corporate Insolvency Practitioner Remuneration.
  Jennifer Dickfos.
  International Insolvency Review. July 15, 2015
  The release by the Australian Treasury on Friday, 7 November 2014 of the Insolvency Law Reform Bill (ILRB) 2014 throws the spotlight once again on corporate insolvency law reform in Australia. Significantly, the ILRB 2014 identifies amongst its purposes two objectives with respect to Corporate Insolvency Practitioner (CIP) remuneration reform. Namely, to promote market competition on price and quality and improve the overall confidence in the professionalism and competence of insolvency practitioners. This paper considers whether the proposed CIP remuneration reforms outlined in the ILRB 2014 will effectively achieve these objectives. Where it is considered that reforms are misdirected, further changes, informed by UK insolvency reform proposals, are considered.

  July 15, 2015   doi: 10.1002/iir.1239   open full text
• Recognition of Debt Restructuring and Resolution Measures under the European Union Regulatory Framework.
  Tomas Arons.
  International Insolvency Review. March 05, 2014
  Under the proposed Bank Recovery and Resolution Directive (BRRD), member states will be required to provide for bail‐in powers to restructure failing financial institutions. At this moment, the Dutch, French, UK and German legislator already provide public authorities with resolution powers. In order to be effective in debt restructuring of failing (non‐)financial institutions, the measures taken by the resolution authorities need to be enforceable (before all courts) and effective in the entire European Union. Given the fact that not all the firm's debt is issued in the home jurisdiction, the question of recognition is critically important. In regard of non‐financial firms, the Dutch, UK, French and German jurisdictions provide for court proceedings to impose a collective settlement reached by the debtor and the majority of its creditors binding on the opposing minority. Out‐of‐insolvency plans approved by the court are recognised under the Brussels I Regulation. If the EU Insolvency Regulation reform proposal is adopted, these court‐approved debt restructuring plans in insolvency situations will be subject to the recognition regime of this regulation. Credit institutions, insurance undertakings, investment undertakings holding funds or securities for third parties and collective investment undertakings are excluded from the scope of the Insolvency Regulation whereas the scope of application of the Reorganisation and Winding Up Directive is limited to credit institutions. The regime under the future BRRD and the Single Resolution Mechanism is limited to credit institutions. National (private international) law determines the recognition of resolution measures taken by the authorities of another member state. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd

  March 05, 2014   doi: 10.1002/iir.1220   open full text
• The Extra‐Territoriality of the Statutory Stay in an English Administration.
  Hamish Anderson.
  International Insolvency Review. February 25, 2014
  This article considers the extra‐territorial scope of the stay imposed in an English administration and argues that it should be treated by the English courts as applying without territorial limitation but that the courts should nonetheless grant leave to proceed in other jurisdictions in any case where there is no sufficient connection with England. It argues that this solution would be right in principle and that the court is not constrained from adopting such an approach by precedent. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd

  February 25, 2014   doi: 10.1002/iir.1217   open full text
• Assessing the Assessments.
  Ron Harmer.
  International Insolvency Review. February 25, 2014
  They said of the July 1997 Asian regional financial crisis that ‘…it could never happen again’. They were right. There has not been another regional crisis—just an international one! This paper owes its origins to the Asian financial crisis. The crisis sparked the development of an assessment model for the evaluation of insolvency laws. The paper reviews the considerable developments in this area, commencing with the pioneering work of the Asian Development Bank in the aftermath of the Asian financial crisis in 1997 and culminating in the, now, quite established triennial practice of the European Bank for Reconstruction and Development (EBRD) in its assessment of the insolvency laws of its ‘countries of operation’. Along the way, mention is also made of the development and application of the World Bank ‘Principles’ and the United Nations Commission on International Trade Law Legislative Guide for Insolvency Law. All of these diagnostic tools have been variously employed in an endeavour to provide a fair and acceptable basis for evaluating an insolvency law. The paper draws comparisons from these tools and concludes that there is a considerable degree of correlation between them, such that approaches taken in 1998 have remained much the same to this time. The EBRD assessment programme is singled out for fuller analysis. It was developed with the benefit of the earlier assessment models and is consistently used as a means of tracking the development of insolvency laws. Accordingly, the paper presents the survey questionnaire on which the EBRD assessment is based, explains the methodology behind it and presents the results of the last of such assessments (2009). It invites an examination of the bases on which the EBRD assessments are undertaken and whether the approach is sufficiently broad, objective and fair and its use in possibly creating aspirations for reform. One purpose of the paper is to capture and record the historical origins and development of the assessment models before it all becomes lost in the passage of time. The paper also advances the use of the EBRD assessment model as a teaching tool in courses in comparative and international insolvency law. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd

  February 25, 2014   doi: 10.1002/iir.1218   open full text
• Cross‐Border Debt Adjustment – Open Questions in European Insolvency Proceedings.
  Tuula Linna.
  International Insolvency Review. December 06, 2013
  At present, 18 European Union member states have some form of legislation on adjustment of the debts of a private individual. Only half of these debt adjustment proceedings are mentioned in Annex A of the European Insolvency Regulation (EIR) and therefore fall within the scope of it. As most of the debt adjustment proceedings are not included in the scope of the Brussels I Regulation, there is a regulatory gap in the European insolvency proceedings with unpleasant impacts on the free movement of labour. Fortunately, changes are coming, in the form of the EIR reform. In order to bring debt adjustment within the scope of the EIR, the Commission proposes to loosen the prerequisite concerning the legal effects, which the opening of the proceedings has on the debtor. Regarding the jurisdiction to open main proceedings, the Commission proposes that COMI (the debtor's centre of main interests) would be the place of habitual residence. The open question is, whether residency requires a certain continuity or stability. This issue is discussed in the paper taking into account recent Court of Justice of the European Union case law. The challenge of the EIR reform is that only provisions on scope and jurisdiction have been modified as to debt adjustment. One may ask, e.g. when the prerequisites concerning the opening of secondary proceedings are fulfilled if the debtor is a private individual. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd

  December 06, 2013   doi: 10.1002/iir.1216   open full text
• Consumer Debt Relief in South Africa—Should the Insolvency System Provide for NINA Debtors? Lessons from New Zealand.
  Hermie Coetzee, Melanie Roestoff.
  International Insolvency Review. July 24, 2013
  South African natural person insolvency law has remained largely creditor‐orientated despite the international trend to assist over‐indebted debtors. Furthermore, although the South African system provides for a number of debt relief procedures, the entry requirements are of such a nature that most debtors are effectively excluded from any form of relief and therefore bound to their desperate situations. The majority of these excluded debtors fall within the no income and no assets (the so‐called No Income No Asset (NINA) debtors) category‐the main feature of this article. In the South African insolvency system, a person can therefore be ‘too poor to go bankrupt’. With reference to international principles and a thorough comparative study of the New Zealand system, the South African system is analysed, and some recommendations are made in order to provide a more accessible, effective and nondiscriminate system with specific focus on the plight of the NINA debtor. This is done by keeping the complex South African debt and poverty situation in mind as it is acknowledged that any reform should take cognisance of the unique socio‐economic and cultural background. It is recognised that providing relief to the NINA category debtors will have an impact on the economy. However, it is submitted that the exclusion of this group will be even more expensive as it creates an obstacle for these debtors to enter the formal sector and economy, thereby discouraging broader economic growth. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd.

  July 24, 2013   doi: 10.1002/iir.1211   open full text
• On the Efficiency of Bankruptcy Law: Empirical Evidence in Spain.
  María‐del‐Mar Camacho‐Miñano, David Pascual‐Ezama, Elena Urquía‐Grande.
  International Insolvency Review. July 24, 2013
  The current economic crisis is showing one of the main problems that many companies in financial distress have to face, namely, the impact of bankruptcy law in relation to companies and firms. This paper aims to analyze the bankruptcy law ex‐ante efficiency when companies are in financial distress. To test it out, two research questions are submitted: (i) Is solvency, the criterion used in the Spanish law, the best one to assess the relative significance of the main indicators, which determine bankrupt firms? (ii) Is the Spanish bankruptcy law efficient according to solvency or are there better criteria? To answer them, a logistic regression model is conducted. The sample embraces 1,387 firms in Spain, the data being obtained from 12 Commercial Justice Courts complemented with financial information. The main conclusion is that the solvency criterion is adequate to classify bankrupt companies although currently Spanish Bankruptcy law is not as efficient as it could be. Additionally, the relevant companies' indicators, which explain the financial distress procedure, are presented. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd

  July 24, 2013   doi: 10.1002/iir.1210   open full text
• Question the Unquestionable Beauty of A Collective Proceeding for All Sovereign Debt Claims.
  Yanying Li.
  International Insolvency Review. July 04, 2013
  The new challenges presented by the current Eurozone crisis and the NML Capital v. Argentina case are likely to shift the international community's attention from holdout behavior in foreign bonds restructuring to inter‐creditor issues. In the past years, many academics, and nongovernmental organizations concerned with debt relief, have put forward proposals to create a bankruptcy regime for states. But none of these proposals has seriously examined what rules should apply to treatment among creditors. Moreover, all insist that there must be a collective proceeding for all sovereign debt claims, without explaining why. This approach is simply taken for granted, as it is one of the fundamental principles of bankruptcy law. The article questions this orthodoxy through examining the nature of sovereign debt crisis, the feature of the limited pool of sovereign assets, and the nonliquidable fact of the sovereign debtor. It also argues that the common pool problem does not exist in the sovereign debt context.

  July 04, 2013   doi: 10.1002/iir.1208   open full text
• Reconsidering the Shareholder's Role in Corporate Reorganisations under Insolvency Law.
  Stephan Madaus.
  International Insolvency Review. June 18, 2013
  A corporate reorganisation under insolvency law is commonly achieved by virtue of a reorganisation plan that provides for the distribution and sacrifice of value among all stakeholders in an insolvent company. Although the creditors' right to vote on such plans and to participate in the wealth distribution according to such plans is universally accepted, the role of old equity in a corporate reorganisation remains a topic that jurisdictions all over the world define very differently. This article first explores possible approaches to shareholders' treatment under insolvency law and supports their inclusion in insolvency proceedings that pursue corporate reorganisations. It then argues that equity interest should not solely be treated according to its economic value and consequently that no absolute priority rule should be applied against them as such treatment would ignore the fundamental difference between liquidation and reorganisation. Finally, it proposes a new cram‐down rule for a class of equity holders. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd.

  June 18, 2013   doi: 10.1002/iir.1209   open full text
• Groups of Companies in Insolvency: A German Perspective.
  Klaus Siemon, Frank Frind.
  International Insolvency Review. April 19, 2013
  Based on an analysis concerning the disadvantages of the previous understanding of handling groups of companies by means of consolidation of jurisdiction, the following article illustrates the basic idea of group‐specialized proceedings (konzernspezifisches Sachwalterverfahren), avoiding ‘domino effects’ and thereby unnecessary insolvencies of profitable subsidiaries and preserving the assets of these parts of the group to a greater extent than an insolvency situation can. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd

  April 19, 2013   doi: 10.1002/iir.1207   open full text