International Insolvency Review最新文献

This article critically examines corporate restructuring plans and schemes in the United Kingdom and United States and third-party releases in the context of such corporate restructurings. So far, the practice has been more extensively examined in the United States rather than the United Kingdom and the practice has been castigated as ‘debt grifting’, that is, third parties getting the benefit of a bankruptcy discharge without going through the formal bankruptcy process. This article acknowledges some of these criticisms. It also suggests that, if third-party releases become more widespread in the United Kingdom, this is likely to militate against the success of the United Kingdom as an international corporate restructuring venue. This is particularly the case if the underlying debt is disputed or gives rise to social or political controversy. The article is divided into five parts. After the first introductory part, the second part will examine how debts are restructured in the large corporate context in the United Kingdom and how third-party releases are important for this endeavour. The third part will examine the equivalent position in the United States. The fourth part explores how the restructuring solutions currently on the table push up against the limits of contractually derived solutions. The final part concludes.

There is significant scope for empirical research in the field of corporate insolvency law. This paper seeks to make a valuable contribution to this field of research. It features analysis of data regarding all insolvent liquidations in Scotland that had their end point within a period of a year, specifically 1 October 2019-30 September 2020 (even if the liquidations commenced prior to that period). A dataset was compiled using information from final accounts documentation for liquidations available from the UK's companies register. Following the introduction, the paper provides background and context for corporate insolvency in Scotland, with particular reference to liquidation and the rules relating to creditors. The section also includes comparisons with the law of England and Wales. The paper then moves on to discuss the empirical methodology adopted and how the relevant data was obtained. This is followed by results and analysis focused on: the asset values of companies in the study, the lifespan of those companies, the timespan of their liquidations, the levels of liquidation expenses, the recoveries of creditors (including secured, preferential and ordinary unsecured creditors), and the role of HMRC in liquidations, as a petitioner and in terms of paying liquidation expenses. The paper contains a number of significant findings regarding each of these matters. It supports the case for a streamlined liquidation procedure for smaller companies and for the introduction of an official receiver in Scotland (while also justifying the existence of the official receiver in England and Wales). Lastly, after the identification of some limitations regarding the analysed data, the paper highlights potential lines of further research building upon this study, including expanding the time periods examined, comparing the data for Scotland with data for other jurisdictions, most obviously England and Wales, and the consideration of corresponding data for other insolvency procedures.

It is a commonly held belief that there exists a sense of stigma around insolvency, which explains the low uptake of rescue procedures in the United Kingdom and around the world. We assess the accuracy of this claim through two qualitative studies. The first is conducted through interviews with corporate directors in the United Kingdom. The second study is a comparative literature review in selected jurisdictions. The literature review reveals a prominent stigma narrative in policy and legal texts, whereas the interview data reveal only moderate levels of stigma. Rather, they indicate that a lack of knowledge and understanding of insolvency (concept, law and procedures) may be a more powerful factor in explaining why corporate directors do not file for rescue procedures.

The article presents an empirical study of English corporate insolvencies initiated between December 2016 and December 2018. The research focuses on creditors' voluntary liquidations (‘CVLs’), the most frequently occurring insolvency procedure. It also looks at a few administrations and compares findings with CVLs to analyse which procedure may lead to better returns to creditors. The article highlights key statistics such as the average costs of procedures and the impact of the prescribed part fund on distribution. Further, the study assesses HMRC's potential debt recovery following its return as a preferential creditor and discusses whether Crown preference is justified. Given that data analysis on the practicalities of distribution during insolvency is lacking, the empirical study arguably helps fill a gap in the literature. Essentially, the article provides quantitative data on the practicalities of distribution and assesses the impact of the order of priority on repayment to creditors.

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 fail to comply with those obligations. This article is Part I of a diptych on this topic, Part II of which will be published in a subsequent issue of this journal.

The business model of crypto custodians is relatively new. If these companies fall into financial distress, the question arises as to which legal framework is applicable to them. Since jurisdictions such as the US, the Swiss, the German, and recently also the European Union place crypto custodians under financial supervision, it seems reasonable to assume that the numerous European legal acts for these firms and the recovery and resolution of credit institutions, investment firms and other firms may be relevant (SRMR, BRRD, MiFID II, CRR, MiCAR etc). On the other hand, crypto custodians could be coherently located in the system of European insolvency law. However, the EIR Recast contains an exclusion for certain companies in the financial sector. Having now seen major crypto custodians in financial distress, legal scholars must answer the question of whether one of the legal frameworks is applicable to crypto custodians or whether the European legislature must extend the scope of one of the regimes to include crypto custodians. The study will show that the business model of pure crypto custodians holding crypto currencies in custody is not covered by major European regulations and directives concerning the financial sector but can be covered by the EIR Recast through a narrow interpretation of its scope exclusion. Taking the European legislator's perspective, the paper demonstrates that neither the CRR, SRMR, nor BRRD will lead to coherent results with respect to crypto custodians in financial distress but instead, though unintentional, the application of the EIR Recast. Concerning crypto custodians, the EIR Recast, therefore, seems to be the more suitable regime.

The March 2023 bank failures of Silicon Valley Bank, Signature, and Credit Suisse, which caused turmoil in financial markets and led to regulatory and central bank intervention, revived the debate about the effectiveness of the bank crisis management, resolution, and deposit insurance legal framework established after the Global Financial Crisis. Although the March 2023 events did not escalate into a full-blown financial crisis, they drew attention to certain areas of the current framework, where improvements may be needed. These areas include the need for financial regulation and supervision to focus more on small- and medium-sized banks as potential sources of systemic market events; to review the adequacy of the current deposit insurance regime and the treatment of uninsured deposits; and to provide more clarity about the order of creditor claims in case of bank resolution/insolvency. This article reviews the events of March 2023 and the key lessons from these events and discusses how these lessons could shape the frameworks for bank crisis management and resolution in India and the European Union. The two jurisdictions are in the process of updating their laws in this area, and the March 2023 events could influence the relevant decisions.

Hybrid restructuring procedures, such as pre-packs, have been encouraged to deal with an expected increase in insolvent firms in the aftermath of the COVID-19 pandemic. Pre-packs have been gaining popularity as a restructuring mechanism across the world. India too introduced a pre-packaged insolvency resolution process for micro, small and medium enterprises (MSMEs) in April 2021. This article first provides a brief overview of the pre-pack models employed in certain other jurisdictions such as the United States of America, United Kingdom and Singapore with a view to understanding the key features of pre-pack models and how they have been operationalised in these jurisdictions. It then briefly discusses other restructuring avenues, that were available to a corporate debtor in India, and the circumstances that led up to the introduction of pre-packs in India. Finally, it provides a detailed overview of the Indian pre-pack regime and evaluates its effectiveness for MSMEs, potential issues that may cause delays in the process and how the current pre-pack regime can be further streamlined. It argues that some of the procedural requirements and features of the Indian pre-pack regime may not be suitable for MSME insolvencies.