NATIONAL REPORT FOR ENGLAND AND WALES

Abstract

This report forms part of a global study undertaking an international comparison of the treatment of executory contracts in the context of insolvency. The introduction covers the history of insolvency law in England and Wales and a description of the procedures available to distressed companies. Section C describes the treatment of executory contracts under the law. It explores if and to what extent it has changed over time and whether their treatment is consistent with the pivotal principles of the common law in regards to contracts: party autonomy, freedom of contract and legal predictability. These principles also undergird the English corporate insolvency framework. Section D extends this consistency exercise to recent reforms of the treatment of these clauses. The final section concludes by observing that the proposed changes to the treatment of executory contracts and termination clauses does not go as far as to reverse the long-established principles that underpin the English corporate and insolvency framework.