International Insolvency Review最新文献

In this article, the author examines with a specific focus on the insolvency practitioner to what extent the Recast European Insolvency Regulation's provisions on communication, cooperation and coordination between the main actors in group companies' insolvency proceedings allow for efficient restructurings of those group companies. In doing so, the author will, at points, compare the provisions in Chapter V of the Recast European Insolvency Regulation to—and draw inspiration from—the German provisions on groups of companies that were adopted into the German Insolvency Act (Insolvenzordnung) and the United Nations Commission on International Trade Law's Model Law on Enterprise Group Insolvency. The author also aims to outline, among other things, the various forms of (cross-border) communication, cooperation and coordination that the Recast European Insolvency Regulation obligates insolvency practitioners of groups of companies to engage in, how they should implement those forms of ‘CoCo’ and what would happen if they neglect to comply with those obligations. This article is Part II of a diptych on this topic; Part I was published in an earlier issue of this journal.

As China's crisis management and market exit mechanism for banks (CMME mechanism) is still at an early stage of development, the legislation governing the mechanism is far from sufficient or satisfactory. With the aim of exploring how the holistic framework of China's CMME mechanism can be improved, this article systemically examines the mechanism from the perspectives of the major procedural components and the specially designed funding sources. Based on the analysis, three major types of weaknesses in the current mechanism are pointed out: ‘missing elements’, ‘unfit elements’ and ‘uncoordinated elements’. To be specific, some essential elements are missing from the current mechanism; some elements in the mechanism are unfit when applied to banks; and some elements are uncoordinated with each other within the mechanism. It is necessary that an overhaul of the mechanism be carried out to address these weaknesses. In addition, given that governments' involvement was demonstrated to be helpful in resolving bank crises in past cases, it would be better to institutionalise this experience in the CMME mechanism. Only with a well-crafted CMME mechanism can bank crises be resolved in an orderly, effective and efficient manner.

Micro- and small-enterprises (MSEs) serve as a strong foundation for sustainable and stable economic and social development in countries worldwide. However, they are highly susceptible to bankruptcy crises, a phenomenon that has been significantly amplified by the COVID-19 pandemic. The article presents an empirical investigation of the application of the bankruptcy system to MSEs, using data on MSE bankruptcies published by the Sichuan courts in China in 2020 during the COVID-19 pandemic as evidence. The article reveals that MSEs face a triple dilemma when applying bankruptcy procedures. Firstly, the legal system for bankruptcy is unsound. Secondly, the institutional mechanism for bankruptcy is imperfect. And thirdly, the social environment surrounding bankruptcy is not conducive. The article presents a novel approach to address bankruptcy issues by suggesting the implementation of streamlined bankruptcy procedures, a reorganization system for small and micro-enterprises and a personal bankruptcy system. Additionally, it proposes enhancing the institutional framework for the selection, evaluation and oversight of bankruptcy judges and administrators, as well as the establishment of third-party institutions. Furthermore, it advocates for a modernized understanding of bankruptcy, the provision of pre-bankruptcy services and the creation of a bankruptcy protection system. The article presents a unique sample of international comparative studies on MSEs and proposes a new approach to examining bankruptcy protection for MSEs in China.

In this contribution, the authors explore recent developments in South Africa's approach to bank resolution, assessing compliance of its new regime with the Financial Stability Board's Key Attributes of Effective Resolution Regimes for Financial Institutions (KAs). Emphasizing the imperative for orderly resolutions to avert financial crises, the authors scrutinize the post-2008 Global Financial Crisis regulatory landscape. Until June 2023, South Africa's approach to bank failure was limited to curatorship and liquidation under the Banks Act 94 of 1990. Addressing gaps identified by international bodies such as the Financial Stability Board, International Monetary Fund, and the World Bank, and taking lessons from the failure of African Bank in 2014, South Africa has transitioned to a Twin Peaks regulatory model and also introduced a comprehensive resolution framework effective June 1, 2023, captured in the Financial Sector Regulation Act 9 of 2017. This framework currently applies to banks only. The South African Reserve Bank now holds an explicit financial stability mandate and is designated as the resolution authority. The article discusses the design features for an effective resolution regime as recommended in the KAs to benchmark the new South African resolution regime, noting overall compliance. However, it acknowledges the need for further development in certain respects to enhance alignment.

This article focuses on the apportionment and distribution of post-filing pre-conversion increases in equity of assets in a debtor’s estate when a debtor converts from a Chapter 13 to a Chapter 7 bankruptcy proceeding. Through an examination of the history of the US Bankruptcy Code and adequate examination of differing approaches, this article argues that courts should adopt the position that the post-filing increase in equity due to appreciation should inure to the estate rather than to the debtor, while the increases in equity through payback plans should inure to the debtor. This approach creates the fairest situation for a debtor, placing them in a situation where they receive the full benefits of the Chapter 13 bankruptcy proposition and provides sufficient economic benefits to creditors.

Ongoing legislative responses to the impacts of the pandemic have prompted many countries to evaluate whether their bankruptcy systems remain fit for purpose. Moreover, the current climate highlights the importance of data-driven policy, which the literature identifies as a deficiency of bankruptcy regimes. In Australia, the 2015 reform proposals to reduce the default discharge period from 3 years to 1 year are currently being revised amidst stakeholder concern about potential abuse and repeat bankrupts. Although an extensive body of literature exists on ‘repeat filers’ in the USA, there has been no equivalent study in Australia. Using our data of 153,526 bankruptcies between 2007 and 2021, we conducted a novel application of survival analysis to predict the probability of a repeat bankruptcy comparing business and non-business groups. The results show that this probability peaked in both male and females with non-business-related administrations irrespective of client's age, employment and relationship status. These findings are important as they identify the prospects that certain bankrupt groups have higher rates of repeat bankruptcy, which can inform strategies to improve their survival rate. A significance of our study is the development of a high-quality longitudinal dataset that facilitates the extension of the data models and allows easy updates about targeted questions involving bankruptcy-related policy shifts and impacts on sub-populations. This methodological approach will enable regulators and insolvency experts to address concerns of repeat bankruptcy to guide policy, evaluate reform and extend the evidence base in other jurisdictions.

The impact of an exclusive jurisdiction clause on a winding-up petition is settled in the English and Singaporean common law jurisdictions. In Hong Kong, the matter has recently been decided in the case of Re Guy Kwok Hung Lam (2023) 26 HKCFAR 119. Nonetheless, a similar issue has been brought up again in the cases of Re Simplicity & Vogue Retailing (HK) Co Ltd [2023] HKCFI 1443 (HCCW 457/2022, 30 May 2023) (per Linda Chan J) and Re Shandong Chenming Paper Holdings Ltd [2023] HKCFI 2731 (HCCW 175/2017, 25 October 2023) (per Harris J). The different approaches adopted in the two cases have sparked on the correct appraoch to be adopted. This article briefly introduces the different appraoches and suggest that the correct approach is to stay a winding-up petition in favour of an arbitration proceeedings launched purusant to an arbitration agreement.