International Insolvency Review最新文献

In cross-border insolvency cases involving foreign liquidators, Hong Kong courts traditionally adhered to two criteria for recognition and assistance: the collective nature of insolvency proceedings and the commencement of such proceedings in the company's place of incorporation. This approach has evolved following Re Global Brands, marking a shift towards considering the company's COMI as a more practical criterion, and highlighting the impracticalities of using the place of incorporation as the primary criterion. Despite the benefits, the COMI Criterion introduces complexities, such as potential non-recognition and conflicting rulings between jurisdictions. There are also questions surrounding the differences between the principle of modified universalism under common law and the UNCITRAL Model Law. This article analyses the impacts brought about by the transition to the COMI Criterion, and encourages consideration of the adoption of the Model Law by Hong Kong in the future.

This paper examines the evolving discussions on directors’ duties in the insolvency context within the EU, particularly in light of recent harmonisation initiatives such as the 2019 Directive on Restructuring and Insolvency and the 2022 Proposal mandating a duty to file for insolvency. Using empirical data from Austria—a jurisdiction with a duty to file—and the Netherlands, which lacks this duty, the study investigates the potential impact and practicality of such requirements. Findings reveal that while Austria and the Netherlands have different frameworks, similar issues in enforcement and compliance emerge in both. These results suggest that imposing stricter or more explicit norms on directors across the EU may not effectively achieve policy goals, especially if financial constraints on enforcement remain unaddressed. We advocate for a policy approach that focuses on practical outcomes and enforcement capacity.

With the ongoing implementation of personal insolvency practices in China’s mainland, the realization of a nationwide personal insolvency system in China’s mainland no longer appears distant. In the design of specific personal insolvency schemes, key elements to consider are establishing entry criteria, assessing the integrity of debtors, determining the duration of the discharge examination period, setting the length of the blocking period for subsequent insolvencies. Additionally, the availability of a simplified procedure for personal insolvency should also be considered. By analysing 12 official documents from regional practices in China's mainland and comparing them with corresponding regulations in Taiwan Region ("Taiwan") and Hong Kong, we can draw valuable experiences and identify shortcomings. This effort aims to lay the foundation for a unified personal insolvency system in the future of China’s mainland.

Despite much debate on Company Voluntary Arrangements (CVA) among UK retailers, understanding of retail CVAs remains limited. There is continuing uncertainty about the uptake of CVAs, what aspects lead to successful outcomes and whether CVAs can be viewed as a remedy for struggling UK retailers. To address these questions, we developed and analysed a novel and detailed dataset of Companies House records for the population of retailers' CVAs between mid-2012 and early 2021. We find that CVAs, despite detrimental impacts on other actors (landlords and suppliers), can be a useful tool for some retailers in adjusting to the new market conditions. The uptake of CVAs among retailers is stable, though not among large retailers. Retail CVAs help to avoid immediate business failure, but we found limited evidence of the success and efficient longer term outcome of the procedure, suggesting that alternative methods could be considered. The success and efficiency of CVA do not seem to depend on the size of the business, but there are variations in both the uptake and efficiency of CVAs across retail sub-sectors. This suggests that a range of mechanisms are required to cater to the different needs across retail categories. Despite the market challenges, CVAs are not prolonged on average. However, longer duration CVAs seem to have a lower chance of succeeding and of being efficient implying that CVA cannot remedy fundamental business issues. Finally, we observed differences related to who oversees the procedure, suggesting that greater emphasis should be put on upskilling and selection of insolvency practitioners.

This article explores the conflict between insolvency law and sanctions law, particularly in the context of European responses to Russia's invasion of Ukraine. Historically, conflicts between legal systems have shaped laws, and modern insolvency law continues this struggle by determining creditor priorities in cases where debtors cannot fully satisfy them. The article highlights how recent sanctions, which freeze assets to restrict the economic activities of sanctioned individuals and entities, complicate insolvency proceedings. The European Union, along with Poland, has imposed unprecedented sanctions on Russia, including bans on transactions, asset freezes, and trade restrictions. These sanctions, while aimed at political objectives, often push businesses into insolvency by preventing access to resources. Case studies such as GoSport in Poland, Amsterdam Trade Bank in the Netherlands, and Fortenova in Croatia demonstrate the complexities that arise when businesses linked to sanctioned entities become insolvent. Key issues include the legal treatment of frozen assets, creditor satisfaction, and the potential for sanctioned entities to benefit from bankruptcy proceedings. Poland has revised its sanctions law, introducing provisions for the appointment of independent managers to oversee sanctioned companies, ensuring continued operations without benefiting sanctioned owners. However, uncertainty remains over the management and distribution of frozen assets, with no clear framework in place. The article concludes that insolvency and sanctions law, though often in conflict, must be applied flexibly to address individual cases. A balanced approach is needed to protect creditors while adhering to the political and legal objectives of sanctions.

“This article examines the implementation of the Model Law on Cross-Border Insolvency in Canada and the evolution of the concept of “modified universalism”. In particular, the article argues that Canadian courts have developed an expansive view of modified universalism, based upon a liberal and purposive interpretive approach, that prioritizes cooperation and coordination with foreign courts to the greatest possible extent. This expansive view of modified universalism began developing in the jurisprudence long before Canada adopted the Model Law in 2009. Although this evolution was not entirely without controversy, since 2009 the law has continued to develop along the same lines. Thus, the Canadian experience illustrates the important role played by the courts in laying the groundwork for the successful adoption and implementation of the Model Law. This can be contrasted with the more restrictive approaches taken by courts in certain other jurisdictions. At the same time, the article also highlights the conceptual indeterminacy of modified universalism, suggesting that more work is needed to fill gaps and resolve inconsistencies that may hamper the law's further development.

This article compares the treatment of creditors in Italy under the “new” judicial composition with creditors (CWC) (“concordato preventivo”) procedure (as recently amended by the new Italian Business Crisis and Insolvency Code of 2022) with Chapter 11 of the US Bankruptcy Code, focusing on two main issues. The first issue analyses the impact of the Directive (EU) 2019/1023, which aims to remove barriers to fundamental freedoms and promote market efficiency by introducing, among others, preventive restructuring frameworks (PRFs). The Directive's guidelines on the treatment of creditors, including the requirement to allocate restructuring proceeds on the basis of the “relative priority rule (RPR)”, are examined. The second issue discusses Italy's new Business Crisis and Insolvency Code of 2022, which introduces several innovations to judicial CWC proceedings. These include facilitations for CWC on a going concern basis, a mandatory division of creditors into classes, a new voting and cramdown system, and significant changes to the distribution of restructuring proceeds, also to comply with Directive (EU) 2019/1023.

Navigating the convergence of domestic governance and international investment law presents multifaceted challenges in an ever-globalizing world. The recent bankruptcy of the Birmingham City Council in September 2023, burdened by substantial debt from equal pay claims, serves as a poignant example, illustrating the potential widespread effects of local financial crises on international investment protections and obligations. The discourse explores the complexities arising from municipal insolvencies and the implications of such local fiscal policies on international investment obligations. The lens of international arbitral tribunals sheds light on the dilemmas faced when local realities vie with global responsibilities, especially concerning investor protections and Bilateral Investment Treaties. Decentralized states add another layer of intricacy, balancing regional policies with overarching international commitments. As the landscape of international investment law transforms, both state entities and investors must understand and adapt to the evolving interplay. The synthesis of these two realms is crucial in today's globalized era. Through proactive policy-making, stakeholder dialogues, and a keen understanding of both local and global dynamics, a harmonious fusion of domestic objectives and international obligations can be achieved.