International Insolvency Review最新文献

This article proposes that, as a matter of policy, the bankruptcy law protections of creditors offering to lend money to large firms in a boom should be weaker than those of creditors offering to lend to such firms in a bust. The policy goals of bankruptcy law under this proposal, inspired by the theoretical framework for Law and Macro Finance, are to curb booms, mitigate the effects of booms gone bust, and protect the productive capacity of the economy in the long term. Bankruptcy courts play a central role in the implementation of this framework. This article discusses examples of legal doctrines the courts could employ for that purpose, such as deepening insolvency and equitable subordination. The courts' role in the countercyclical management of creditor expectations concerning recoveries distinguishes the Law and Macro Finance framework for corporate debt from the more conventional Law and Finance framework. Under the Law and Finance framework, the primary policy objective of bankruptcy courts is to maximise creditor recoveries. Under the Law and Macro Finance framework, that objective is to help manage creditors' expectations concerning recoveries across the credit cycle.

Many English (and other) restructuring lawyers consider that the scheme of arrangement cannot properly be characterized as an insolvency proceeding for the purposes of certain international instruments for (amongst other things) the allocation of jurisdiction and/or the recognition of proceedings, judgments, and/or orders. This article shows that this view is mistaken. The article examines insolvency as a scalar attribute and a vague concept. It draws out the implications of treating insolvency law functionally as that part of law which responds to the circumstances peculiar to a debtor's insolvency. It considers the nature of insolvency, “pre-insolvency”, “preventive'”, restructuring, liquidation, and “pre-pack” proceedings. It shows that proceedings operating under insolvency law in relation to insolvent debtors often operate in identical or materially similar ways in relation to solvent debtors. This is as true of winding-up, administration, and company voluntary arrangement proceedings under English law as of the scheme of arrangement. This has important implications for the characterization of a proceeding as an insolvency proceeding for relevant purposes. The article outlines the development of the concordat in several civil law jurisdictions, starting with its roots in Justinian's Digest. It traces the development of the composition in England, starting with its status as a voluntary process incapable of binding dissentients, taking in the “protections” granted by the Privy Council and the “bills of conformity” issued by the Court of Chancery, and then considering statutory compositions. It shows how the statutory composition travelled from natural person insolvency law to corporate insolvency law. The artic draws on this analysis and the official reports on key European instruments allocating international jurisdiction in insolvency and “civil and commercial” matters to characterise the scheme of arrangement. The article also assesses the most detailed critique yet of the gategroup judgment of the High Court of England and Wales, which characterized the restructuring plan proceeding as an insolvency proceeding for certain jurisdictional purposes. The critique of this judgment usefully exposes to the sunlight of public scrutiny — at length and independently of the exigencies of any particular litigation — the types of arguments which have been used to resist the conclusion that the scheme is (quite plainly) a judicial composition which constitutes an insolvency proceeding for relevant purposes when deployed in relation to insolvent companies. The article shows that these arguments are unpersuasive.