International Insolvency Review最新文献

A survey of Australian insolvency practitioners explored the moratorium in corporate insolvency and its potential for reform. Conducted between 18 May and 30 June 2024, the survey targeted 1175 registered liquidators and recognised insolvency lawyers, gathering 119 responses. This survey was conducted in the context of the 2023 Australian Parliamentary Committee inquiry into insolvency laws, which called for a comprehensive and independent review of Australia's insolvency laws, the last being in 1988. The survey aimed to gather current opinions on the moratorium's effectiveness and potential reforms to enhance stakeholder outcomes. The results of the survey did not identify any appetite amongst practitioners for any material augmentation of the moratorium, for example, a US style comprehensive automatic stay.

In 2022, the author surveyed the extensive common law framework of providing recognition of and assistance to foreign insolvency practitioners in Hong Kong and argued that the development was intended to achieve two objectives, namely harmonizing the Hong Kong common law position with the relevant principles under the UNCITRAL Model Law on Cross-border Insolvency, and strengthening the implementation of the mutual recognition framework on corporate insolvency proceedings between the Mainland and Hong Kong. Three years have passed, and the Hong Kong court has continued to develop the relevant jurisprudence. This article aims to review the relevant authorities between 2022 and 2025 and discuss how some new issues may be resolved in light of these two objectives.

Since its implementation in May 2021, the Cross-Border Insolvency (hereinafter CBI) Cooperation Mechanism between Chinese Mainland and Hong Kong has operated for 4 years, yielding a discernible number of cases crossing the two jurisdictions. To facilitate future collaboration, this article evaluates the current practices under the Cooperation Mechanism and identifies existing challenges. Specifically, by analysing cases adjudicated between designated pilot courts in the Chinese Mainland and Hong Kong, the article clarifies the application of key legal criteria, including the Centre of Main Interests (COMI) test, the requirement that “the company's principal assets in the Mainland are located in a pilot area, or it maintains a place of business or a representative office in a pilot area,” and the necessity principle. Furthermore, the article highlights gaps in procedural rules and judicial practice when Mainland courts issue applications for recognition and assistance to Hong Kong courts. Given that the Cooperation Mechanism and its accompanying Practical Guide only outline the manner and procedures for applications within pilot areas, this study also examines practical challenges in cooperation between Hong Kong and non-pilot areas in the Chinese Mainland. Finally, the article summarizes the policies issued in pilot areas to implemented Cooperation Mechanism and proposes potential solutions to strengthen cross-border insolvency collaboration.

Micro and small enterprises (MSEs) form the backbone of the European economy but remain particularly vulnerable to financial distress and insolvency. Despite the EU's efforts to harmonise insolvency laws, significant divergences persist among Member States, especially regarding tailored frameworks for smaller businesses. The Preventive Restructuring Directive (PRD) (EU 2019/1023) introduced optional provisions for small and medium-sized enterprises (SMEs), yet their selective transposition reflects the reluctance of some jurisdictions to adopt special regimes.

The 2022 Proposal for further harmonisation sought to address these gaps, notably by introducing simplified winding-up procedures for microenterprises. However, disagreements over national legislative autonomy, the roles of insolvency practitioners and courts, and inconsistencies in definitions hindered consensus.

This paper critically examines the evolution of EU insolvency law as it relates to MSEs, evaluates national implementation practices, and explores possible pathways for harmonisation, despite the ultimate failure to establish a unified winding-up regime for smaller businesses. It argues that while a coordinated EU approach is necessary, achieving a balance between legal uniformity and national flexibility remains a significant challenge.

A well-functioning bankruptcy system is essential for economic stability, ensuring the efficient resolution of bankruptcies and the fair distribution of remaining assets. However, many jurisdictions face the issue of “empty,” “assetless,” or “insolvent” estates, where the assets of bankrupt entities are insufficient to cover the costs of the bankruptcy proceeding, particularly the compensation of bankruptcy trustees. This issue has been considered an obstacle in the Dutch legal practice by bankruptcy trustees, judges, and other lawyers for many years, and recently also by Dutch policymakers, but its actual size and approach for possible solutions have received little attention in scholarship. To this end, we conducted a comprehensive study of various aspects of the issue. Part of this study concerned the review of a number of foreign legal systems to learn from best practices abroad. This explorative part of our study provides a comparative analysis of 18 jurisdictions outside the Netherlands on how different countries address the challenge of compensating bankruptcy trustees in cases where estates lack sufficient funds. The goal of this part of our research was to look for the legal framework in those jurisdictions with the aim to provide an overview of existing funding strategies abroad. These strategies include public funding mechanisms, where the state covers trustee compensation in cases of insufficient assets, and advance payments by applicants to cover (initial) costs. Additionally, some systems rely on mechanisms like minimum guaranteed fees, insurance schemes, or funding from specialized bankruptcy funds. This part of the study concludes by offering an overview of the variety of bankruptcy trustee compensation in insolvent estates.

The work analyzes the US Supreme Court ruling in the Purdue Pharma case concerning the admissiblity of the third party release in Chapter 11 proceeding. Starting from the court decision, the paper focuses on the effects of the ruling on the Italian restructuring proceedings.

Despite the international divergences existing in the design of insolvency law, there is a common feature of insolvency proceedings that, to a greater or lesser extent, is somehow universal: insolvency proceedings are generally costly and lengthy processes. For that reason, it is not surprising that a significant body of the literature on insolvency law deals with different mechanisms to make insolvency proceedings more efficient. This article examines how technology can contribute to that goal. To that end, it starts by reviewing how countries are deploying, or can deploy, technology in different aspects and stages of insolvency proceedings and how such digitalization of insolvency proceedings can significantly reduce the costs and length of insolvency proceedings. The article also examines how artificial intelligence (AI) and data analytics tools can be used for many other insolvency-related purposes that range from facilitating investigations, negotiations and alternative dispute resolution mechanisms in insolvency to providing advice and enabling the early detection of financial distress. The article concludes by examining how AI is expected to change the design and practice of insolvency law as well as the challenges that need to be addressed for a successful transition towards a technology-driven insolvency system.

Over the past few decades, there has been some formal convergence regarding the treatment of crown debts, with several jurisdictions limiting the preference given to crown debts in their insolvency legislations. However, two jurisdictions have notably diverged from this general trend: the United Kingdom and India. In the United Kingdom, the initial legislative priority accorded to crown debts was removed in the early 21st century, only to be brought back by the Parliament in 2020. Conversely, in India, while the legislature has consistently relegated crown debts to a lower position in the liquidation waterfall, a 2022 Supreme Court decision has resulted in crown debts occupying a higher priority. This Article traces the chequered history of crown preference across both jurisdictions. In doing so, this Article argues that while the two jurisdictions have arrived at a similar end result of according priority to crown debts, they have traversed vastly different paths in reaching the said outcome. Further, the Article reconsiders the policy considerations in favour of crown preference and argues that such policy considerations may not fully justify the reintroduction of crown preference.